An employer establishing a drug testing policy should take the Americans with Disabilities Act (ADA) into account, be aware of federal anti-drug initiatives that affect government contractors and employers in safety-sensitive industries and be familiar with applicable state laws.
The ADA does not prevent an employer from taking steps to combat the use of drugs and alcohol in the workplace. It specifically allows an employer to prohibit the use of drugs and alcohol in the workplace and to prohibit employees from being under the influence of drugs or alcohol at work. An employer can discharge or deny employment to current users of illegal drugs without fear of being held liable for disability discrimination. Under the ADA, a drug screen is not considered a medical test, and an employer can require applicants to take pre-employment drug tests. Alcohol testing, however, is considered a medical test and may not be performed prior to a conditional offer of employment.
An employer setting up a drug testing program should be aware of federal antidrug initiatives. The Drug Free Workplace Act covers federal government agencies, federal contractors with contracts or purchase orders totaling $100,000 or more and recipients of federal grants. The Act does not require alcohol or drug testing, but testing is authorized as a means to maintain a drug-free workplace.
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