Employment Law Blog

News, trends and analysis in employment law and HR

Apr 16, 2013

More Q&As involving random alcohol tests

Q&ADrug and Alcohol 

Random alcohol tests of employees are prohibited under the Americans with Disabilities Act (ADA) because they are considered medical exams, which are prohibited on a random basis unless there is a job-related reason for doing so that is consistent with business necessity. Random tests are allowed if a specific law provides for an exemption, such as commercial motor vehicle drivers under the U.S. Department of Transportation regulations. Here are some of the questions Vigilant  has received recently regarding random alcohol tests:

Q: Can we require a random alcohol test if an employee is on a Last Chance Agreement (LCA)?

A: Yes, provided that you’re able to make a case that the random test fits within the ADA standard (i.e. job-related and consistent with business necessity). If an employee tests positive for a substance, therefore violating your drug and alcohol policy, then you should be okay requiring random alcohol tests under an LCA because you have a business related reason for doing so. However, for purposes of employment law compliance be sure to adopt a reasonable standard under your LCA; if you require random tests that are too frequent (e.g. daily) or for too long of a time frame (e.g. for the next ten years), then you probably won’t meet the ADA’s standard. Also, be sure the LCA is triggered by an actual violation of your drug and alcohol policy, as opposed to an employee coming forward and voluntarily admitting a problem with drugs or alcohol. See our Model Form, “Last-Chance Agreement” (991), for more ideas.

Q: Our drug testing facility can’t separate the drug test results from the alcohol test results; it’s all or nothing. Does that mean we can’t do any random tests (drugs or alcohol)?

A: Not necessarily. Instead, you should have a conversation with the drug testing facility about your ADA compliance concerns to generate ideas. First, make sure there aren’t any other options for doing just the drug test. If there aren’t, you should be okay running the test if the facility doesn’t give you the results of the alcohol test. You should be screened from receiving any information about the alcohol portion of the test; it may still be a technical violation of the ADA because you’re still conducting a random medical exam, but the risk of liability would be greatly minimized because you’d never be receiving the medical information.

Q: We’ve been doing random drug and alcohol tests for many years and this is the first time I’ve heard about this rule. Is this a new standard under the ADA?

A: No, the ADA has long restricted random medical tests. But it’s understandable that there is some confusion in this area given the different treatment of random alcohol tests versus random drug tests. Keep in mind that alcohol is a legal substance and alcoholism is considered a disability; randomly checking for alcohol use is similar to testing a diabetic employee’s blood sugar level. Both could present workplace health and safety concerns, but the ADA standard requires a stronger business case than general, unspecific safety concerns before subjecting an employee to that kind of medical exam. Drug use is treated differently because it deals with illegal substances and current use doesn’t qualify as a disability under the ADA.

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