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Federal Drug and Alcohol Testing Requirements

The following federal laws regulate drug and alcohol testing in the workplace:

• Americans with Disabilities Act.
• Title VII of the Civil Rights Act.
• Genetic Information Nondiscrimination Act.
• Transportation employees and the Department of Transportation regulations.
• Drug-Free Workplace Act.

Note: State laws also regulate drug and alcohol testing. See the Drug and Alcohol Testing state pages for further information.

Americans with Disabilities Act

Under the Americans with Disabilities Act (ADA), employers are prohibited from discriminating against employees and applicants based on disability. Under the ADA, a qualified individual with a disability is an employee or job applicant who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks. The person must also be able to perform the essential functions of the position either with or without reasonable accommodation. Job requirements, such as drug testing, that screen out or tend to screen out people with disabilities are legitimate only if they are job-related and consistent with business necessity. Employers must be mindful that drug and alcohol testing may disclose information about an individual’s disability, thus triggering ADA protections. However, the ADA does not protect the current use of illegal drugs within the definition of an individual with a disability; thus, employers are not prohibited by the ADA from taking action based on an individual’s current use of illegal drugs.

Note: Employers may neither require a medical examination nor make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature and severity of the disability.

Drug Use and the ADA

The ADA does protect former drug users who have successfully completed treatment or who are participating in treatment and persons erroneously regarded as illegal drug users. Specifically, employers may not discriminate against an individual based on his or her illegal drug use who is not engaging in current illegal use and who meets any of the following:

• Successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully.
• Is participating in a supervised rehabilitation program.
• Is erroneously regarded as engaging in such use and is not engaging in such use.

Additionally, individuals who are using a drug taken under supervision by a licensed health care professional or other legal uses are protected against discrimination.

However, neither current nor casual use of illegal drugs are protected under the ADA. Subsequently, denying employment to job applicants solely because of a history of casual drug use would not raise ADA concerns. Alternatively, policies that screen out applicants because of a history of addiction or treatment for addiction must be job-related and consistent with business necessity to comply with the ADA.

For example, if safety is asserted as a justification for such a policy, then the employer must be able to show that individuals excluded because of a history of drug addiction or treatment would pose a direct threat (a significant risk of substantial harm) to their own, or others, health or safety, which cannot be eliminated or reduced by reasonable accommodation.

Pre-Employment Inquiries and Illegal Drugs

It is not a violation of the ADA to ask an applicant whether he or she has ever used illegal drugs or been arrested for such use.

Prescribed Drugs

Under the ADA, individuals who are using a drug taken under supervision by a licensed health care professional or other legal uses are protected against discrimination. Tests to determine whether employees or applicants are using prescribed drugs must be job related and consistent with business necessity. Moreover, employees who receive positive results on fitness for duty tests may be entitled to reasonable accommodation.

Alcoholism

The ADA protects alcoholism if it qualifies as a disability; however, the ADA specifically allows employers to prohibit both on-the-job use of alcohol and employees from being under the influence of alcohol while in the workplace. However, any alcohol test must be job related and consistent with business necessity and, if given to applicants, may be administered only after conditional offers of employment are extended.

Qualification Standards

An employer may also hold an employee who engages in illegal drug use or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee.

ADA, Testing, and Other Federal Laws

The ADA permits employers to perform any testing required by Department of Transportation (DOT), Department of Defense (DOD), or Department of Energy regulations. It also allows employers to prohibit employees from using or being under the influence of illegal drugs in the workplace and from violating the Drug-Free Workplace Act.

Per the federal Substance Abuse and Mental Health Services Administration (SAMHSA):

• Employers with drug-testing programs need to be extremely careful not to single out employees for testing simply because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms that are commonly associated with intoxication — slurred speech, disorientation, or a lack of coordination — can also be the result of a serious physical disability or medical condition, such as diabetes, low blood sugar, or mental illness. Individuals with these conditions are protected under the provisions of the ADA. Singling them out for testing or disciplinary action could result in charges of discrimination.
• Employers should refrain from asking employees about their legal prescription drug use as part of the pre-hiring or pre-promotion drug-testing process. While the case law in this area is still evolving, some state courts have ruled that requesting such information constitutes a form of discrimination and is in violation of the ADA.

Title VII and Drug Testing

According to Title VII of the Civil Rights Act, private employers with 15 or more employees are prohibited from discriminating against individuals based on race, color, religion, sex, and nationality. Employers that implement a drug-free workplace policy need to ensure all such policies and programs treat workers equally and avoid singling out any particular racial, ethnic, or gender group for testing or disciplinary action.

Genetic Information Nondiscrimination Act and Drug Testing

Title II of the Genetic Information Nondiscrimination Act (GINA), applicable to employers with 15 or more employees, protects employees from discrimination based on genetic information by prohibiting the use of genetic information in employment decisions, restricting employers from requesting, requiring, or purchasing genetic information, and strictly limiting the disclosure of all genetic information.

Per GINA’s regulations, at 26 C.F.R. 1635.3(f), testing for the presence of drugs or alcohol are not genetic tests under the law. However, a test to determine whether an individual has a genetic predisposition for alcoholism or drug use is a genetic test and thus is prohibited by GINA.

Transportation Employee Drug and Alcohol Testing

Federal law regulated by the Department of Transportation (DOT) requires various forms of drug and alcohol testing by employers in the following transportation industries:

• Motor carrier.
• Railroad.
• Aviation.
• Maritime.
• Mass transit.
• Pipeline.

Employers in these industries are required by the DOT to implement highly specific drug-testing programs conforming to detailed regulations. Additionally, under the DOT regulations, all employees who need a commercial driver’s license (CDL) to perform their work are subject to drug testing. The regulations apply to any employer with a single CDL employee.

DOT-Required Drug Tests

49 C.F.R. 40 (Part 40) is a DOT-wide regulation that states how to conduct testing and how to return employees to safety-sensitive duties after they violate a DOT drug and alcohol regulation. Part 40 applies to all DOT-required testing, regardless of what DOT agency-specific rule applies to an employer. For example, whether the employer is an airline covered by Federal Aviation Administration rules or a trucking company covered by Federal Motor Carrier Safety Administration rules, Part 40 procedures for collecting and testing specimens and reporting of test results apply.

Each DOT agency-specific regulation details which employees are subject to testing, when and in what situations for a particular transportation industry.

Pre-Employment Testing

Applicants for employment in covered positions must successfully complete a drug test before performing a safety-sensitive function.

Random Testing

According to 49 C.F.R. 655.45, DOT employers in the motor carrier and mass transit industries must conduct a number of random drug tests each year equal to 50 percent of covered employees. (Different random testing rates may apply to employers in the DOT-covered industries.) Such tests must be spread throughout the year.

Employees may not receive any advance warning of the random tests and must have an equal chance of being tested during each period of selection time. Employers may wish to join consortiums or to contract with third-party administrators to reduce some of the administrative problems involved in scheduling random tests.

Post-Accident Testing

Testing is required within a specific number of hours after serious accidents or rule violations. Employees who may have contributed to the accident must be drug tested after receiving any necessary medical attention. According to 49 C.F.R. 382.303, commercial motor vehicle drivers must be tested after reportable accidents if they receive a citation for a moving violation arising out of the accident or if someone dies as a result of the accident.

Reasonable Suspicion Testing

An employer may conduct drug and alcohol testing when the employer has reasonable suspicion to believe that the employee has used a prohibited drug or engaged in alcohol misuse. Tests for reasonable suspicion must be based on specific, contemporaneous, articulable observations by a trained supervisor(s) concerning the employee’s appearance, behavior, body odors, or speech.

Return-to-Duty Testing and Follow-Up Testing

Employees who violate DOT drug-testing regulations must undergo a return-to-duty test with a verified negative result before performing a safety-sensitive function.

Employees who violate DOT drug-testing regulations and have a drug problem, as diagnosed by a substance abuse professional, are subject to random follow-up testing for up to five years after returning to duty.

Direct Observation

Employers must direct an immediate collection under direct observation with no advance notice to the employee, if:

• The laboratory reported to the medical review officer (MRO) that a specimen is invalid, and the MRO reported to the employer that there was not an adequate medical explanation for the result.
• The MRO reported to the employer that the original positive, adulterated, or substituted result had to be cancelled because the test of the split specimen could not be performed.
• The laboratory reported to the MRO that the specimen was negative-dilute with a creatinine concentration greater than or equal to 2 mg/dL but less than or equal to 5 mg/dL, and the MRO reported the specimen to the employer as negative-dilute and that a second collection must take place under direct observation.

Employers must also direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test. Employers must explain to the employee the reason for a directly observed collection. Employees may decline to be directly observed, however, such declination constitutes a refusal to test.

Consequences for Violation of DOT Drug-Testing Regulations

Employees who receive verified positive test results or otherwise violate the regulations must be immediately removed from safety-sensitive positions. Such employees may not return to duty until after they undergo evaluation and treatment or pass medical tests. The employees are then subject to random follow-up tests.

Employees who refuse to be tested or engage in conduct that clearly obstructs the testing process are subject to the same consequences as employees who test positive.

DOT regulations neither mandate nor forbid the imposition of additional discipline (such as discharge) by an employer for violating DOT rules. Employers are free to impose additional consequences on their own authority, subject to the legal obligations and limitations previously discussed.

Additional DOT Drug-Testing Requirements

The DOT regulations also require and authorize the following:

• Testing only for marijuana, cocaine, opiates, codeine, morphine, 6-acteylmorphine, amphetamines, methamphetamines, MDMA, MDA, and phencyclidine (PCP).
• Testing only by labs certified by the U.S. Department of Health and Human Services.
• An MRO must assess test results. The MRO must determine whether there was a legitimate explanation for positive tests and whether lab the results were scientifically reliable.
• Employers must use the split-sample method of urine testing. Under this method, the urine sample provided at the testing site is divided into a primary sample and a split sample. Employees and applicants who receive verified positive results or verified adulterated or substituted results on the primary sample may request that the split-sample be sent to another certified lab for testing.

Effective January 1, 2018, per a final rule from the DOT, all of the following apply to DOT drug-testing:

• Employers are required to also test for hydrocodone, oxycodone, hydromorphone, oxymorphone.
• Methylenedioxyamphetamine (MDA) is added an initial test analyte.
• Methylenedioxyethylamphetamine (MDEA) is removed as a confirmatory test analyte.

The final rule also:

• Clarifies some testing program definitions and provisions.
• Makes technical amendments.
• Removes the requirement for employers and third-party administrators of drug testing programs to submit blind specimens.

DOT Alcohol Testing

All employers covered by the DOT drug-testing regulations are also required to have an alcohol-testing program complying with DOT standards.

The alcohol rules provide for breath testing using trained technicians and evidential breath-testing devices. The breath-testing devices must be federally approved. The regulations allow the option of using saliva tests or nonevidential breath-testing devices for screening tests only.

Note: Confirmation tests must be conducted with evidential breath-testing devices.

Consequences for Violation of DOT Alcohol-Testing Regulations

Employees with a confirmation test result indicating a blood alcohol concentration (BAC) of 0.04 or greater or who otherwise violate the DOT alcohol regulations must be immediately removed from performing safety-sensitive duties. They may not return to such duties until they are evaluated by a substance abuse professional and undergo a successful return-to-duty test. Such employees are also subject to follow-up testing and must successfully complete any prescribed treatment program.

Employees who refuse to be tested or obstruct testing are subject to the same consequences as employees testing 0.04 BAC or above. As with DOT drug testing, employers may impose additional discipline subject to the other legal obligations and limitations previously discussed.

Employees with a BAC between 0.02 and 0.39 are not deemed to be in violation of the regulations, but must be temporarily removed from safety-sensitive duty for 24 hours.

DOT-Required Alcohol Tests

The DOT regulations generally require covered employers to conduct the following types of alcohol tests:

• Post-accident.
• Reasonable suspicion.
• Return to duty.
• Follow-up.
• Random.

The DOT regulations require that random testing be conducted annually and, according to 49 C.F.R. 655.45, DOT employers in the motor carrier and mass transit industries must conduct a number of random alcohol tests each year equal to 10 percent of covered employees.

DOT Policy Requirement

Employers are required to prepare and distribute a policy explaining the requirements of DOT regulations to all covered employees. Each employee must sign a statement certifying receipt of the policy.

NLRB and Drug Testing

Employers implementing drug-free workplace policies in unionized workplaces must abide by the National Labor Relations Act (NLRA). Under NRLA, any drug-testing program affecting unionized workers must be negotiated and agreed on with the union through a formal collective bargaining process. Even when an employer is required to implement a drug-testing program by another federal mandate, such as DOT testing, it must negotiate with the union to determine exactly when testing will be conducted and what penalties should apply to workers who test positive for drug or alcohol use.

Additionally, according to the National Labor Relations Board (NLRB) an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test. Subsequently, employers may be found in violation of the National Labor Relations Act (NLRA) for denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him or her for refusing to take the test without a union representative present.

Drug-Free Workplace Act (Federal Contractors)

According to the federal Drug-Free Workplace Act, located at 41 U.S.C. § 8101 – 8106, federal contractors are required to maintain drug-free workplaces.

Covered Employers

The act applies to the following:

• Any organization that receives a federal contract of $100,000 or more.
• Any organizations receiving a federal grant of any size.

Requirements

At a minimum, such organizations must:

• Prepare and distribute a formal drug-free workplace policy statement that clearly prohibits the manufacture, use, and distribution of controlled substances in the workplace and the specific consequences of violations.
• Establish a drug-free awareness program that informs employees of the dangers of workplace substance use and offers information about any available counseling, rehabilitation, or employee assistance programs (EAPs).
• Ensure that all employees working on the federal contract understand that they must notify the employer within five calendar days if he or she is convicted of a criminal drug violation.
• Notify the federal contracting agency of that a covered employee was convicted of criminal drug violation within 10 days of the conviction.
• Take direct action against an employee convicted of a workplace drug violation, to include penalties or participation in an appropriate rehabilitation or counseling program.
• Maintain an ongoing good faith effort to meet all the requirements of the Drug-free Workplace Act throughout the life of the contract by demonstrating their intentions and actions toward maintaining a drug-free workplace.

Failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future government funding.