Drug Testing Federal Law

FEDERAL LAWS ON DRUG TESTING AND DRUG ABUSE PREVENTION

In addition to the Connecticut drug testing law, there are federal laws on drug testing and drug abuse prevention that may affect Connecticut employers who are engaged in certain industries or who contract with the federal government.

Federally mandated testing programs generally require testing for five classes of drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP), although there are some exceptions (for example, the DOT regulations also require alcohol testing).

Urine is the authorized specimen except for alcohol testing, where breath or saliva may be used. A two-step testing procedure is required, utilizing a screening test and a confirmation test.

Further, only laboratories certified by the U.S. Department of Health and Human Services may be used to test specimens for federally mandated testing. Specimens testing positive on both tests must undergo a “medical review” by a licensed physician, who is commonly referred to as a “medical review officer” or “MRO.”

1. Department of Transportation

For employers involved in inter-state or intra-state transportation, the U.S. Department of Transportation (DOT) regulations require that transportation workers in safety-sensitive jobs be subject to various types of drug testing (pre-employment, random, reasonable cause, periodic, and post-accident).

The DOT rules are implemented by the various agencies with oversight for the particular form of transportation involved.

These include: the Federal Aviation Administration (air transport); the Federal Highway Administration (commercial motor transport); the Federal Railroad Administration (railroads); the Federal Transit Administration (mass transit); the Research and Special Programs Administration (pipelines); and the U.S. Coast Guard (maritime/commercial vessels).

2. Federal Drug Testing Laws for Other Industries

In addition to transportation, there are federal laws and regulations concerning drug testing for certain other industries and agencies. These include the nuclear industry, the defense industry, the Department of Energy, and NASA.

3. The Drug-Free Workplace Act and Federal Contractors

The federal Drug-Free Workplace Act of 1988 applies to all federal grant recipients and businesses having government contracts worth more than $25,000. The Act neither requires nor prohibits drug testing of employees. However, it does require covered entities to:

• Make a good-faith effort to maintain a drug-free workplace;
• Develop and publish a written anti-drug policy and ensure that employees read and consent to the policy as a condition of employment;
• Establish an ongoing drug-free awareness program to inform employees about the dangers of drug abuse, the policy of maintaining a drug-free workplace, the penalties for violations of the policy, and any available counseling, rehabilitation, and employee assistance programs; and
• Require employees to report (in writing) any conviction for a drug offense in the workplace. Within 30 days of being so informed, employers must take appropriate personnel action (up to and including termination), or require participation in a drug abuse assistance or rehabilitation program.

The Act further requires each covered entity to certify that it will provide a drug-free workplace by complying with the above measures.

4. The Americans with Disabilities Act

The Americans with Disabilities Act covers all employers with 15 or more employees. The ADA prohibits employers from discriminating against qualified individuals with disabilities. Recovering alcoholics and drug users are protected from discrimination under the ADA, as are those who are erroneously perceived as being illegal drug users. Current alcoholics are protected as long as they are not drinking or intoxicated on the job; however, they may be held to the same employment standards as other employees even if the unsatisfactory performance is related to their alcoholism.

Under the ADA, an employer is required to provide a qualified disabled person reasonable accommodation to enable the person to perform the essential functions of the job. In some circumstances, this may include providing for a leave of absence so that the employee can receive necessary treatment.

Current users of illegal drugs, or individuals who are drinking at the work site, are not protected under the ADA.

In addition, although the ADA prohibits pre-offer medical inquiries, testing for illegal drugs is not considered a medical examination or inquiry under the ADA. Evaluation of positive test results by a physician, however, may constitute a medical inquiry. For this reason, as well as cost reasons, an employer may want to consider conducting drug testing only after a conditional offer of employment has been made.

5. The Occupational Safety and Health Act

The Occupational Safety and Health Act is a comprehensive statute that governs workplace health and safety. The OSH Act does not specifically address drug and alcohol testing nor does it have any standards concerning such testing in the workplace.

The Act does, however, have a “general duty clause” intended to cover hazardous situations for which there are no specific OSHA standards. This clause requires every employer to furnish its employees with employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious harm.

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