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Drug Use in the Workplace: Federal Laws to Consider

Editor Dan Schimmel, LCSW, CAP
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When it comes to the rights of employees and employers regarding drug use and other workplace situations, federal laws are clear. However, ‘it’s important for both employers and employees to be aware of them and know their rights and obligations. Most of these critical laws and regulations were created to provide a discrimination-free and drug-free environment for both employees and employers.

Generally speaking, federal laws regarding the workplace can be divided into two groups. In one group, we have laws explicitly designed to focus on drug use in the workplace. The other group is more concerned with the fundamental civil rights of workers. ‘Let’s have a closer look at some of these laws in order to understand the legal landscape of the workplace better:

Drug Use in the Workplace — the Drug-Free Workplace Act

Most private employers aren’t required to have a drug-free workplace policy. However, that goes only for employers who aren’t federal grantees or contractors, as well as employers who aren’t in industries that are security-sensitive or safety-sensitive.

One of the primary laws governing this is the Drug-free Workplace Act, passed in 1988 at the initiative of President Reagan. He was worried about drug abuse in the military, so the Drug-free Workplace Act made it illegal for employees “to manufacture, distribute, dispense or have in possession prohibited controlled substances.” However, ‘that’s not the only law governing the workplace.

Federal Laws and Regulations Protecting Employees

Federal laws and regulations that grant legal protection to employees are also very important. Different categories of employees require various protections in the workplace. Starting from creating limits for what employers can do to investigate and sanction employee drug use, all the way to protecting employees with disabilities, these laws are vital in maintaining the civil rights of American workers.

The National Labor Relations Act

The National Labor Relations Act, or NRLA for short, was passed in 1935. It mostly governs unionized workplaces, and it’s an integral part of what employers need to know if they want to implement a drug-testing program.

However, the National Labor Relations Act regulates management and labor negotiations. Unionized workers have to negotiate all sorts of workplace conditions and processes with the union, which includes drug-testing programs. That also means that the employer must partake in the negotiations regarding these programs, even if implementing such a program is mandatory.

Usually, conditions are what’s being negotiated. For example, the employer must reach an agreement with the union regarding the frequency of drug-testing and when it can be performed. Additionally, the employee penalties for testing positive and failing to comply with drug-free policies are discussed as well.

The Civil Rights Act

The Civil Rights Act was passed in 1964, and it mostly impacts private employers who have more than 15 employees. It’s a law that focuses on suppressing discrimination in the workplace, whether it is based on an employee’s race, sex, nationality, or religion. However, there is a part of the Civil Rights Act that is important for employers who are looking into implementing drug-free workplace policies: Title VII.

Generally speaking, there won’t be many challenges to stay compliant with the Civil Rights Act while attempting to implement a drug-free workplace policy. However, employers should still make sure that their drug-free policies aren’t intentionally or unintentionally targeting any one employee or a group of employees. They should strive to ensure equality of treatment, which will be best accomplished by having a diverse representative group of employees work on formulating the drug-free workplace policy.

The Americans with Disabilities Act

The Americans with Disabilities Act was adopted in 1990, and its alleged violations are to blame for almost half of all lawsuits regarding drug-free workplace policies, which is why it might be the single most important regulation about which employers should be knowledgeable. Lack of information about the requirements of the Americans with Disabilities Act puts employers at risk of not being compliant when creating the drug-free workplace policy.

The terms of the Americans with Disabilities Act state that employers cannot fire, or refuse to either hire or promote employees because they have a history of substance abuse, or because they take part in drug or alcohol rehabilitation programs. Therefore, employers have to be very careful not to make their drug-free workplace policies seem like they’re targeting these employees specifically. Also, according to the ADA, they should avoid asking potential employees whether they use any prescription drugs, as some courts interpret these questions as ADA violations.

The Family and Medical Leave Act

The Family and Medical Leave Act was adopted in 1993. It’s a law requiring public agencies and private employers with 50 or more employees to provide certain benefits to the employees. Every employee who has worked for the employee for one year and completed a minimum of 1,250 hours in that time can take a 12-week unpaid leave. This job-protected leave can be taken because of the employee’s serious health condition, or they can take the leave to care for a family member with a serious health condition.

What makes the Family and Medical Leave Act relevant for employers looking to implement a drug-free workplace policy is the option for employees to take the leave to deal with their substance abuse related problems. The FMLA forbids employers from retaliating against an employee who takes their 12-week leave for these reasons, which includes refusing them a promotion only based on their taking the leave.

Key Takeaways

Drug-free workplace policy can be a useful addition to your workplace policies, but it’s important to be informed. Certain federal laws and regulations that might not appear relevant to it at first glance can play an important part in the formation of your policy.

Make sure to get yourself acquainted with the National Labor Relations Act, the Civil Rights Act, the Americans with Disabilities Act, and the Family and Medical Leave Act to be compliant with them when drafting your drug-free workplace policy.

 


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