Workplace Drug and Alcohol Policies: Common Pitfalls for the Public Employer

• Jurisdiction: California,United States,Federal
• Author: By Nikki Hall and Steven P. Shaw
• Publication year: 2015
• Citation: Vol. 38 No. 4

Workplace Drug and Alcohol Policies: Common Pitfalls for the Public Employer

By Nikki Hall and Steven P. Shaw^*

MCLE SELF-STUDY ARTICLE

(Check end of this article for information on how to access 1.0 self-study credit.)

INTRODUCTION

Public employers have a strong interest in making sure they operate safe and efficient workplaces. Likewise, public employers also have obligations to their employees that—whether by law or collective bargaining agreements—often go beyond those applicable in the private sector. It is in this context that public employers currently face increasing challenges with respect to the implementation of drug and alcohol policies and the manner in which employers safeguard against the unauthorized use of illegal substances in the workplace. At the forefront of these challenges is public agencies' ability to maintain strong drug and alcohol policies while not running afoul of employees' individual rights or legitimate medical needs.

In California, most public employers are required by state law to certify that they provide a drug free workplace¹ and must also follow the regulations of the Federal Drug Free Workplace Act of 1988.² Accordingly, it is critical for public agencies to have a drug-free workplace policy. At the same time, in recent years, the Equal Employment Opportunity Commission (EEOC) has increased its scrutiny of drug-free workplace policies, highlighting public employers' need to avoid overbroad policies that may discriminate against employees with disabilities. Recently, the EEOC has found that certain drug-free workplace policies violated protections afforded under the Americans with Disabilities Act (ADA) because they either directly or indirectly infringed upon the users' rights to use prescription medications. In particular, such policies were found to be unlawful because they included prescription medications within a vaguely defined definition of "drugs" while prohibiting, or imposing significant restrictions, upon the use of such medications in the workplace.³

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This article will outline methods for dealing with the problem of overbroad drug-free workplace policies and explore some of the other significant issues facing California public employers with respect to drug and alcohol policies, all in the context of a primer of suggested "DOs" and "DON'Ts" for public agencies.

DRUG AND ALCOHOL POLICY "DON'TS"

1. DON'T Lump Together (Legal) Prescription Medication Use With Illicit Drug Use

Perhaps the single most identifiable problem with many public employers' drug-free workplace policies is the inclusion of language that is overbroad. For instance, many employers' policies directly—or inadvertently—prohibit the use of lawfully-prescribed medications used to treat disabilities. Examples of such policies are those that: (1) define drugs, either expressly or implicitly, as including lawfully-prescribed medications; (2) prohibit employees from taking such prescription medications at the worksite or require them to disclose the existence of a disability or prescription medications they are taking; or (3) preclude the use of any prescription drugs that could hypothetically increase the "potential" for accidents, absenteeism or substandard performance.

Both the ADA and California's Fair Employment and Housing Act (FEHA) are broad with respect to what constitutes a "disability" covered by those statutes.⁴ An individual who is taking lawfully-prescribed medications to treat any one of myriad medical conditions may be a protected individual with a disability under those statutes, and it would violate their rights to take any sort of adverse employment action resulting from their use of such medications.⁵ Additionally, it is unlawful for an employer to require an employee with a disability to disclose either the nature of their medical condition (aside from identifying medical restrictions for which they may require accommodation) or the type of medications the employee is taking.⁶ Thus, encompassing prescription medications within the category of a drug-free workplace policy and requiring the employee to disclose the use of such medications potentially violates both the ADA and FEHA.

Precluding the use of lawfully-prescribed medications that could hypothetically present safety concerns may also violate the ADA and FEHA. In order to prove that use of a prescription drug poses a threat to the health or safety of the employee or others, an employer must establish a significant risk and imminent likelihood of substantial harm, based on reasonable medical judgment.⁷ Accordingly, the employer cannot substitute its own judgment in place of a medical determination that the employee's prescription drug use would result in imminent and substantial harm. Moreover, even if a safety threat actually exists, an employer must engage in an interactive process with the affected employee to determine if any reasonable accommodation exists that would eliminate the threat.⁸

2. DON'T Include Random Drug Testing

Although some limited drug testing of employees is allowed in California, it may be justified only in strictly defined circumstances. The United States Supreme Court has held that the collection and testing of public employees' biological samples is a search within the meaning of the Fourth Amendment and therefore must be reasonable.⁹ While in criminal cases, a government agency must generally have a warrant or probable cause for drug testing,¹⁰ courts have slightly relaxed the standard for public employers' drug testing of current employees.¹¹ For example, a public employer may conduct a drug test where reasonable suspicion exists that an employee is impaired by drugs or alcohol at the worksite or while being compensated for on-call duty, including where there is some level of individualized suspicion based on factors such as slurred speech, bizarre conduct, uncharacteristically poor work performance, and excessive accidents or tardiness.¹² Moreover, and as discussed further below, certain public safety employees, such as Department of Transportation drivers and operators, are subject to broader testing.¹³

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While random drug testing is generally not permitted in the public sector due to employees' Constitutional rights of privacy and freedom from unauthorized searches and seizures, public employers should still have policies in place for drug testing when the situation warrants; however, the policies should be clear and require appropriate documentation by the employee's supervisor or department head as to the probable cause for the drug test.¹⁴

Public employers must also note that while testing for illegal drugs is not considered a "medical examination" under the ADA, testing for alcohol or legal drugs is.¹⁵ Testing for alcohol use may also be considered a medical examination under California law. In any event, the standards for conducting alcohol testing are similar under both the ADA and FEHA insofar as the regulations governing both statutes allow for drug and alcohol testing of current employees where the employer has a "reasonable belief" that an employee may be under the influence of drugs or alcohol at work.¹⁶ Generally speaking, both statutes permit medical examinations when "job-related and consistent with business necessity," a standard which requires a reasonable belief, based on objective evidence that, (1) an employee's ability to perform essential job functions may be impaired by a medical condition (or medications being used by the employee to treat the condition); or (2) an employee may pose a direct safety threat due to a medical condition or the treatment associated with the medical condition.¹⁷ Disability-related inquiries and medical examinations that follow up on an employee's request for reasonable accommodation also may be job-related and consistent with business necessity.¹⁸ In addition, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity.¹⁹ For example...