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Chapter
9
Compliance with Federal and
State Mandates
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After developing a policy
statement, a company may wish to offer supervisory training to those
closest to the workforce, including information about drugs and
alcohol, drug paraphernalia, signs and symptoms of usage, and performance
deterioration signals. Training enables supervisors to properly
establish reasonable suspicion before referring employees for testing
and aids in the implementation of a drug and alcohol Employers must
be aware of several federal and state rules, regulations, and laws
when implementing a drug- and alcohol-free workplace program, particularly
when the program includes testing. Not all laws will be relevant
to all employers, but it is important to determine which ones are
relevant to your particular situation.
Some of the more common mandates
that affect employers and the ways in which they conduct their programs
include:
• Title VII of the
Civil Rights Act of 1964;
• State drug testing
laws;
• Americans With Disabilities
Act of 1990;
• State Workers’
Compensation laws;
• Federal Drug-Free
Workplace Act of 1988;
• U.S. Department
of Defense regulations;
• U.S. Department
of Transportation regulations.
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Summary
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Title VII of the Civil Rights
Act of 1964 applies to all private employers with 15 or more employees
and prohibits discrimination against applicants or employees on
the grounds of race, sex, religion or national origin.
Challenges to drug- and alcohol-free
workplace programs under Title VII are not common or likely, but
an employer must be sensitive to the impact of the program upon
groups who are protected under this law. It is important that a
program and its procedures not provide even the perception, let
alone the practice, of treating any employee differently because
of race, sex, religion or national origin. The program must be consistently
enforced with employees.
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Title VII of the
Civil Rights Act of 1964
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states have enacted drug testing statutes. Some of the laws restrict
testing, require specific procedures to be followed, restrict sanctions
that can be imposed on employees who violate policies, and authorize
private lawsuits against employers, laboratories and medical facilities
that violate the laws. It is imperative that employers determine what
laws (if any) exist in the states in which they conduct business and
ensure compliance with the laws. The Institute for a Drug-Free Workplace
in Washinton, D. C. publishes a guide to state and federal drug testing
laws. Information can also be obtained from the U.S. Department of
Labor in Washington, D.C., and the federal Center for Substance Abuse
Prevention in Rockville, Maryland. |
State
Drug Testing Laws |
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The Americans With Disabilities
Act of 1990 (ADA) is a comprehensive civil rights bill that applies
to all employers with 15 or more employees.
ADA prohibits employers from
discriminating in employment decisions against a “qualified
individual with a disability... because of his disability.”
A “qualified individual with a disability” does not
include any applicant or employee who is currently abusing
drugs or alcohol. The Act specifically permits employers to adopt
drug testing and drug-free workplace policies, and to prohibit employees
from using illegal drugs. However, “qualified individuals”
may include persons who have successfully completed rehabilitation
programs, or are in a program and are no longer using illegal drugs.
Purported violation of the
ADA is one of the most common types of legal challenges facing employers
in administering drug- and alcohol-free workplace programs. It is,
therefore, extremely important that employers fully familiarize
themselves with this law, which is available on the Internet.
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Americans
With Disabilities Act of 1990 |
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States vary as to the legal
impact on Workers’ Compensation claims when drug and/or alcohol
are determined to be contributing factors. Some states have laws
that cause an injured worker to become ineligible for Workers’
Compensation benefits when an employee’s injury is caused by
the willful and serious misconduct of the injured employee or by
his intoxication.
Many states have also enacted
laws that provide financial discounts on Workers’ Compensation
insurance premiums to employers who maintain drug- and alcohol-free
workplace programs.
It is important for employers
to determine what, if any, Workers’ Compensation laws exist
in the states in which they conduct business before implementing
a drug- and alcohol-free workplace program.
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State
Workers' Compensation Laws |
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The Federal Drug-Free Workplace
Act of 1988 became law on March 18, 1989. The law requires that
all federal contractors who receive $100,000 or more, as well as
all federal grant recipients, must comply with its requirements.
Drug testing is not required under this law, but other provisions
of a drug-free workplace are. The following guidelines give the
minimum requirements:
• Publish a policy statement
prohibiting unlawful use, possession, manufacture, or distribution
of controlled substances in the workplace;
• Notify employees of
said prohibition and the penalty for violating it;
• Establish a drug-free
awareness program;
• Provide employees
engaged in a contract with a copy of the policy statement;
• Notify employees that
compliance with the policy statement is a condition of employment;
• Require (in writing
in your policy)employees to notify the employer within five days
if they are convicted of a criminal drug statute violation occurring
in the workplace; additionally, notify the contracting agency of
such violations, and impose a sanction or require completion of
a drug assistance program by a convicted employee;
• Make a good-faith
effort to maintain a drug-free workplace through these provisions.
If you are a federal government
contractor or grantee, you may wish to contact the agency that awarded
your contract or grant to determine whether it has additional requirements.
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Federal
Drug-Free Work Place Act of 1988 |
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The U.S. Department of Defense
(DOD) has issued rules and regulations that obligates defense contractors
to establish and maintain a drug-free workplace program for all
personnel who work in “sensitive jobs.”
General guidelines of the
DOD regulations include:
• Contractor, in concert
with the contracting agency, is responsible for determining which
jobs are “sensitive” by analyzing the type of work performed
and the duties of the various jobs and their relationship to security.
• Drug testing is
required for individuals in “sensitive” jobs.
• Drug testing is
permitted in circumstances such as 1) reasonable suspicion,
2) post-accident, and 3) as part of rehabilitation and is required
in pre-employment situations.
• In unionized settings
wherein contract clauses conflict with testing regulation, drug
testing must be discussed in the next round of contract negotiations.
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U.S.
Department of Defense Regulations |
The
U.S. Department of Transportation (DOT) has issued rules and regulations
that require the implementation of drug- and alcohol-free workplaces,
including drug and alcohol testing, by employers in the transportation
industry. The rules and regulations are applicable to employers regulated
by one or more of the following transportation regulators:
• Federal Aviation
Administration (FAA);
• Federal Highway
Administration (FHWA);
• Federal Railway
Administration (FRA);
• United States Coast
Guard;
• Urban Mass Transportation
Administration;
• Research and Special
Programs Administration (pipelines).
Specific requirements vary
from administration to administration, but basic guidelines under
the DOT regulations include:
• Circumstances under
which testing is required:
• pre-employment;
• reasonable suspicion;
• random;
• post accident; and
• return-to-duty and follow up.
• DOT has established
strict testing procedures that must be followed. All drug testing
must be conducted in laboratories certified by the U.S. Department
of Health and Human Services.
• All positive drug
tests must be reviewed by a Medical Review Officer (MRO), and employees
must be afforded an opportunity to consult with the MRO prior to
the test result being reported to the employer.
• Five classes (and
only these five classes) of drugs must be tested for:
• marijuana;
• cocaine;
• amphetamines;
• opiates; and
• phencyclidine (PCP).
• Cut-off levels established
by DOT must be used in drug testing.
• Alcohol testing
of employees must be conducted using only devices and equipment
approved by DOT and in accordance with procedures established
by DOT. Alcohol testing of applicants is not required.
• Depending on the
agency, employees must receive drug awareness training, including
information about the company’s drug- and alcohol-free workplace
program. Employees must also be provided awareness information
about alcohol misuse.
• All supervisors
must receive a minimum of 60 minutes of training in drug abuse
detection, documentation and intervention, and an additional 60
minutes of similar training about alcohol abuse.
• Employees determined
to have drug and/or alcohol abuse problems must be referred by
the employer to a Substance Abuse Professional (SAP) for evaluation.
Before the abusing employee can be returned to duty, a recommendation
of “return to duty” must be made by the SAP.
Employers who are subject
to any of these mandates would be prudent to thoroughly research
the specifics of the relevant mandates to ensure that they develop
a comprehensive drug- and alcohol-free workplace program that adheres
precisely to the requirements.
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U.S.
Department of Transportation Regulations |
 
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