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discrimination against “a qualified indi- vidual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”13 In narrowing the focus to workplace drug and alcohol testing pro- grams, several points must be made. Title I of The Americans with Disabilities Act14 as amended in 2008 provides definitions related to the workplace, such as:
To whom does this law apply?
Employer -
(A) In general. The term “employer” means a person engaged in an industry af- fecting commerce who has 15 or more em- ployees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years fol- lowing the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.
What is a disability?
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment15
How does the ADA deal with illegal drug use?
Section 12114 of the ADA provides:
(a) Qualified individual with a disabil- ity. - For purposes of this subchapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
(b) * * * Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who-
(1) has successfully completed a su- pervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in
such use;
(2) is participating in a supervised reha-
bilitation program and is no longer engag- ing in such use; or
(3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or ad- minister reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual de- scribed in paragraph (1) or (2) is no longer engaging in the illegal use of drugs.
An employer is permitted to . . .
1) prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
2) require that employees shall not be under the influence of alcohol or be engag- ing in the illegal use of drugs at work;
3) require that employees behave in conformance with the requirements estab- lished under the Drug Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);
4) hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for em- ployment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alco- holism of such employee; and
5) with respect to federal regulations regarding alcohol and the illegal use of drugs, require that employees are required to abide by any applicable federal rule.
Additionally, a test to determine the il- legal use of drugs shall not be considered a medical examination.16
There have been and continue to be lawsuits on nearly every word of the sec- tions set out above. And these are just a few examples of what is contained in the ADA and its regulations.
Bill Judge is an attorney who, for the past 30 years, has concentrated his practice on research, consultation, litigation assistance, and management training related to the legal issues of substance abuse in the work- place and in our nation’s schools. All statutes, regulations, and court decisions discussed in this article are available through Encompass Compliance Corp. at www.emcompinc.com.
REFERENCES
1. This is the total amount recovered by the EEOC in 2016 for employees discriminated against in the workplace. See EEOC Fiscal Data Report - 2016 at: https://www.eeoc.gov/eeoc/ newsroom/wysk/2016_highlights.cfm
2. Failure to follow federal rules can also be very costly. For example, in 2016 in McCall v. Coastline Distributing, Inc., the jury returned a verdict of $2.1 million when the employer failed to enroll the driver in a drug testing program; the driver tested positive for methamphetamines and opioids after the accident.
3. This case began in 2003 and, after post-trial motions and several appeals finally ended on Dec. 30, 2016.
4. While working and in severe pain, Tomick called his wife and told her he would be home for lunch as usual. He added that the helper Trudelle had promised did not show at the ap- pointed time and place. His wife called Trudelle and said her husband was in severe pain and she feared he was “going to have a nervous breakdown.” When the employee called Trudelle, he was told that if he couldn’t do the “f***ing job” to just bring the truck back.
5. http://www.cdc.gov/homeandrecreation- alsafety/rxbrief/; Note that this is a problem worldwide. See https://www.mailman.columbia. edu/public-health-now/news/nonmedical- use-prescription-drugs-among-young-people- growing-global-concern, showing that, depending on the country, there has been as much as a 550 percent increase in non-medical use of prescription opioids.
6. Journal of Occupational and Environmental Medicine, August 2012.
7. https://www.cdc.gov/nchs/fastats/drug-use- therapeutic.htm; In 2012, 259 million opioid prescriptions were written, enough for every adult in America to have a bottle. https://www.cdc. gov/mmwr/volumes/65/rr/rr6501e1.htm
8. https://www.cdc.gov/nchs/fastats/drug-use- therapeutic.htm
9. https://www.cdc.gov/nchs/fastats/drug-use- therapeutic.htm
10. https://nccih.nih.gov/research/statistics/ NHIS/2012/key-findings
11.https://www.researchgate.net/profile/ Xuguang_Tao/publication/229437059_The_Ef- fect_of_Opioid_Use_on_Workers’_Compensa- tion_Claim_Cost_in_the_State_of_Michigan/ links/02e7e533ace8492624000000/The- Effect-of-Opioid-Use-on-Workers-Compensation- Claim-Cost-in-the-State-of-Michigan.pdf; Workers on opioids are also less likely to return to work. See, https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC4204477/pdf/nihms530252.pdf; also Deyo RA et al. Opioids for low back pain. BMJ. 2015 Jan 5;350
12. http://www.jpain.org/article/S1526- 5900(12)00559-7/pdf
13. 42 U.S.C. Sec. 12112(a).
14. 42 U.S.C. Sec. 12111, Title I Employment. 15. 42 U.S.C. Sec. 12102(1).
16. 42 U.S.C Sec 12114 and Sec. 12210
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