Question: An employee in a safety-sensitive job came forward to say she’s going into a 28-day treatment program for alcohol use disorder. When she comes back, can we test for alcohol (return-to-duty and unannounced follow-up tests)?
Answer: Maybe… so please ask your Vigilant Law Group employment attorney or other legal counsel to review your specific facts before taking action! Here are some considerations that may affect the answer:
Determine if FMCSA rules apply: Does the employee hold a commercial driver’s license (CDL) and drive a vehicle that is large enough to require drug and alcohol testing under rules of the U.S. Department of Transportation (DOT)’s Federal Motor Carrier Safety Administration (FMCSA)? Did she admit to using alcohol in violation of DOT rules (such as using alcohol within 4 hours before performing safety-sensitive functions)? Ordinarily, such an admission is treated the same as a positive test. However, the FMCSA regulations give employers the option to establish a voluntary self-identification policy that allows eligible drivers to voluntarily admit to alcohol misuse or controlled substance use before reporting for duty or being selected for a test, without the admission being tagged as a DOT violation in FMCSA’s database (the Drug and Alcohol Clearinghouse). The policy must state that the employer won’t take adverse action against drivers who provide a voluntary admission that qualifies under the policy. Eligible drivers must be removed from performing safety-sensitive functions until they are evaluated by a qualified drug and alcohol abuse evaluation expert, successfully complete the expert’s recommended education/treatment plan, and pass a non-DOT return-to-duty test for alcohol and/or drugs. The employer has the option to require non-DOT monitoring and follow-up testing once the employee is back at work. See the regulations at 49 CFR 382.121 and the section entitled, “Voluntary Referral to Substance Abuse Treatment (Self-Identification Policy)” in our Model Policy, DOT Drug and Alcohol Testing Policy for Drivers.
Follow your policy: Do you have a written drug and alcohol policy that has been distributed to all affected employees? Does it provide for return-to-duty and follow-up testing? If the answer to either question is “no,” then you definitely cannot test for alcohol (or drugs) in this situation. For example language, see our Model Policy, “Drug and Alcohol Policy” (4005). If you observe signs of impairment, you could take other actions, such as removing the employee from work and requiring a fitness-for-duty exam. Sometimes an impairment is due to a medical condition, not the use of alcohol or drugs. If a medical condition isn’t the cause of the impairment, then discipline may be appropriate.
Determine whether admission was truly voluntary: When the employee announced her intention to seek treatment, what was the context? Had she been selected for a test or confronted about performance issues? If so, then her admission wasn’t truly voluntary and it’s fine to impose conditions on her return, as long as you have a written drug and alcohol policy allowing you to do so.
Don’t impose last-chance agreements after a voluntary admission: If the employee’s admission was voluntary, does your policy treat voluntary admissions of the need for treatment (outside the context of being selected for a test) the same as a positive test for alcohol or drugs? Such an approach tends to send a message that workers are better off trying to hide their addictions instead of getting treatment. Instead, we recommend encouraging workers to seek treatment before their use of alcohol or drugs interferes with work. One way to do so is to fund an Employee Assistance Program (EAP), which provides a confidential avenue for employees to obtain an assessment by a professional who can put together a treatment plan. In contrast, if an employee tests positive for alcohol or drugs while on duty (or admits to using them in violation of your policy), then it makes sense to impose a mandatory referral to a substance abuse professional, coupled with return to employment under a last-chance agreement in lieu of termination. (Simply terminating an employee for testing positive is also an option, as long as you administer the policy consistently – such as terminating employees with fewer than 12 months of service and offering last-chance agreements to employees who have served for 12 months or longer.)
Consider potential limitations on random testing for alcohol: Conducting unannounced follow-up tests for alcohol based purely on a voluntary request to enter treatment (separate from being selected for a test or from being confronted over signs of impairment) may be problematic under the Americans with Disabilities Act (ADA). An alcohol test (unlike a test for illegal drugs) is a medical exam under the ADA. Under the ADA, employers cannot require current employees to take a medical exam unless the exam is job-related and consistent with business necessity. A completely voluntary request for time off for treatment may not be sufficient to show that it is job-related and necessary to test the employee periodically for alcohol after they return. A similar problem may arise under California state law, which generally prohibits random alcohol tests (as well as random drug tests), with very limited exceptions for public safety roles.
Don’t require the employee to pay for the tests: If you require a return-to-duty test and follow-up testing, who will pay for it? Depending on the particular facts, state laws in California (Labor Code 2802(a) and 222.5), Montana (MCA 39-2-301), and Oregon (ORS 659A.306) may require the employer to pay for the cost of these tests. Even in other states, if you’re thinking of requiring the employee to pay, you’ll likely violate the ADA because you’ll be treating this person who is currently addicted to alcohol (keeping in mind that alcohol addiction is a disability under the ADA) differently than your non-disabled employees who don’t have to pay for their post-accident or reasonable suspicion drug/alcohol tests. (Note: A person who is currently using illegal drugs, even if due to an addiction, is not a qualified individual with a disability.) The U.S. Department of Justice (DOJ) recently filed a lawsuit on behalf of an employee who voluntarily entered an alcohol addiction treatment program (separate from a test, and with no work performance issues) and was subjected to such a policy. The DOJ announced that the parties had agreed to ask the judge to approve a settlement in which the employer will reimburse the employee for out-of-pocket costs (nearly $2,000) and pay $11,250.00 for compensatory damages (emotional distress).
Apply FMLA procedures if applicable: Is the employee eligible for leave under federal or state law? If the employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) or similar state leave laws, apply your regular leave policies. Providing the leave may also be a reasonable accommodation for a disability under the ADA. If you would normally require a medical release after a leave for an employee’s own serious health condition, then you should in this instance too.
By assessing your particular situation carefully and having the right policy language in place, you can take appropriate action to enforce your safety rules while also offering employees a meaningful opportunity for treatment with the goal of a successful return to work. Contact your Vigilant Law Group employment attorney with questions and policy assistance.
