Disability Law Index - Employment: Drug Testing

Statute:

42 U.S.C. § 12114(d) - Drug testing

(1) In general - For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination.

(2) Construction - Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.

Regulation:

29 C.F.R. § 1630.16(c) - Drug testing

(1) General policy - For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the administration of such drug tests by a covered entity to its job applicants or employees is not a violation of Sec. 1630.13 of this part. However, this part does not encourage, prohibit, or authorize a covered entity to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.

(2) Transportation employees - This part does not encourage, prohibit, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to:

(i) Test employees of entities in, and applicants for, positions involving safety sensitive duties for the illegal use of drugs or for on-duty impairment by alcohol; and
(ii) Remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to paragraph (c)(2)(i) of this section.

(3) Confidentiality - Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of Sec. 1630.14(b) (2) and (3) of this part.

Case Law:

Longen v. Waterous Company. (8th Cir. Oct. 20, 2003).

  • Employee who battled substance abuse entered into a last chance agreement (LCA) with his employer which required him to enter treatment and stay clean.
  • Last chance agreements do not violate the ADA simply because it subjects the employee to different conditions from other employees.
  • Under the ADA, there are no restrictions on what type of further constraints a party may place upon himself.