 |
|
 |
Page: 1
2 3
|
| What Medical Tests or Inquiries are Permitted
to Determine Whether an Individual has a Drug or Alcohol Problem? |
|
The permissible scope of medical tests and inquiries depends upon
whether an employer is seeking information, on the one hand, about
a current drug impairment or a current or past alcohol impairment
or, on the other, past drug impairment. Because the current illegal
use of drugs is not a protected disability, employers can obtain
information about drug use that they could not otherwise get about
other disabilities.
For example, employers may ask a job applicant about current illegal
use of drugs prior to a conditional offer of employment. They may
also ask an employee about current illegal use of drugs at any time
without showing that the inquiry is job related or required by business
necessity. Finally, the ADA explicitly states that a test to detect
the illegal use of drugs is not considered a medical examination,
and, therefore, drug tests may be given prior to a conditional offer
of employment or at any time in an employee's tenure.
Employers must be careful, however, in conducting a drug test prior
to a conditional offer of employment because the drug test could
reveal information about other disabilities that applicants have
a right to withhold until after an employment offer. For example,
a drug test could reveal the presence of dilantin, which is used
to treat epilepsy, or methadone, which is used to treat heroin addiction.
If such protected information is obtained, employers cannot use
such information in a way that violates the ADA. The ADA also requires
that information collected from medical examinations and inquiries
be collected and maintained on separate forms and in separate medical
files and treated as a confidential medical record.
Inquiries about alcohol use or past drug use, on the other hand,
must be treated like inquiries about any other disability. Such
inquiries cannot be made of applicants until after a conditional
offer of employment or of employees except when job related or required
by business necessity. In addition, urine or breath tests that detect
the use of alcohol cannot be done prior to a conditional offer of
employment or cannot be required of an employee unless the test
is job related and required by business necessity.
|
What Can an Employer Do To Ensure that an Individual is No Longer
Using Drugs? |
|
The ADA permits employers to take reasonable steps to ensure that
an individual is no longer illegally using drugs. Employers are
permitted to conduct drug tests and to obtain information from treatment
programs in order to monitor drug use. If an employer has an employee
assistance program (EAP), the EAP may be the best entity to conduct
the follow-up.
While the ADA does not impose many restrictions on drug testing,
employers are required to use accurate test procedures and to comply
with any federal, state, or local law that regulates drug testing.
In addition, when seeking information from a drug or alcohol treatment
program about an individualœs rehabilitation, employers should
be aware that federal regulations govern the release of drug and
alcohol patient information by virtually all treatment programs.
(2) These regulations, in order to protect the confidentiality
of individuals with drug and alcohol problems, require the execution
of a detailed consent form before employers can receive treatment
information and place strict limitations on the employerœs
use, maintenance and redisclosure of that information. Because these
regulations impose more stringent confidentiality standards than
those in the ADA, they supersede the ADA's requirements for protection
of drug and alcohol treatment information.
|
What Accommodations Do Individuals With Drug and Alcohol Problems
Need? |
|
Accommodations for individuals in recovery from a drug or alcohol
problem will vary depending upon the requirements of their jobs
and their length of time in recovery. For example, individuals who
have recently completed a rehabilitation program may need to participate
in a structured, out-patient continuing care program on a regular
basis. Others who have been sober for a long time will participate
in self-help groups, such as Alcoholics Anonymous, for the rest
of their lives in order to prevent relapse. Involvement in such
continuing care may require some accommodation.
|
Examples of necessary accommodations could include: |
| |
• A modified work schedule
to permit an employee to pick up her daily methadone dosage
or to attend an out-patient relapse prevention counseling
session.
• Job restructuring to relieve
an employee of particular marginal tasks that may compromise
recovery or be inappropriate in the early stages of recovery.
• Temporary reassignment
of an employee in a safety-related position to a vacant non-safety
sensitive position while he or she completes treatment.
|
|
|
In addition, because individuals with current alcohol impairments
are protected against discrimination to the extent they can perform
their job effectively and safely, employers are required to consider
providing unpaid leave to permit an individual with a current alcohol
impairment to attend an in-patient treatment program. In addition,
if an employer provides paid leave to individuals who are obtaining
medical treatment for a disability, the employer must provide the
same benefit to an individual who is obtaining treatment for an
alcohol problem.
Some employees will need no accommodation, but simply a change in
attitude regarding what an individual with a past drug or alcohol
impairment can do. It is important to understand that such individuals
are able to perform all jobs safely, including safety-related jobs,
and that they pose no risk to others solely because of a past drug
or alcohol addition. An employerœs most important obligation
under the ADA is to evaluate the individualœs ability to do
the essential job tasks and make employment decisions based on the
individualœs qualifications and work performance.
|
|
2. Confidentiality of Alcohol and Drug Abuse Patient Records, 42
C.F.R. Part 2.
|
Page: 1 2 3
|
|
