Drugs, alcohol, work and the law

The national battle to eliminate substance abuse in the workplace has been raging for more than a decade, and great progress has been made. Unfortunately, smaller employers—particularly those in the construction industry—have been disproportionately lagging behind in these efforts, according to the U.S. Department of Labor (DOL). Part of this may be because of a perceived lack of resources and administrative staff, or many employers simply do not know how to put a substance-abuse program together. Still others lack information about the true consequences of taking no position on this critical issue and, as a result, they often become employers of last resort for addicts and alcoholics. In effect, they allow their companies to become work-free drug places.

Such a "hands-off" attitude can have serious legal and financial consequences. According to the Occupational Safety and Health Administration (OSHA), between 10 percent and 20 percent of U.S. workers who die on the job test positive for alcohol or other drugs and 47 percent of industrial injuries are linked to alcohol consumption and alcoholism. Industries with the highest rates of drug use (construction and mining) also have the highest risks of occupational injuries. In addition to accident costs, substance abuse at work increases absenteeism, judgment errors and medical insurance claims and generally decreases employee morale and productivity.

About one-quarter of construction laborers and supervisors between the ages of 18 and 49 admit to illegal drug use within the past year, and 20 percent are current heavy alcohol users. Forty-four percent of current illicit drug users report they work for companies with one to 24 employees, and only 13 percent work for establishments with more than 500 employees. (These figures are according to DOL and Department of Health and Human Services' Substance Abuse and Mental Health Services Administration.)

These figures are striking and warrant employers to consider implementing workplace substance-abuse policies. But multiple laws and federal agencies can make establishing a substance-abuse policy a little complicated.

Program development

There should be five basic components of any solid substance-abuse prevention program: a written policy, supervisor training, employee education, employee assistance, and drug and alcohol testing.

Before implementing a workplace program, it is necessary to understand some of the federal laws that affect the rights of substance abusers and employer obligations. As will be discussed, these laws are designed for fostering substance-abuse prevention while protecting the due process and privacy rights of workers who use or have had a history of abusing illegal or prescription drugs and alcohol. Because some state and local laws impose additional requirements, I encourage you to consult counsel before putting any programs into effect.

Legal issues

There are two main federal laws that apply to employers' rights and obligations with respect to maintaining a workplace that is free of substance abuse while also handling sensitive human-resources issues legally. These are the Drug-Free Workplace Act of 1988 and Americans with Disabilities Act (ADA) of 1990. In addition, roofing companies that perform work under government contracts also may be subject to the requirements of the Rehabilitation Act of 1973. (Section 503 pertains to employment of people with disabilities, including those addicted to drugs or alcohol.)

Other related laws include the Family and Medical Leave Act (FMLA) (and analogous state laws, which may offer greater protections) and the U.S. Department of Transportation's (DOT's) regulations pertaining to individuals who hold commercial driver's licenses (CDLs). Finally, employers may face enforcement sanctions from OSHA if they fail to protect employees by permitting individuals who are under the influence of drugs or alcohol to work at a job site.

Drug-Free Workplace Act

The Drug-Free Workplace Act requires some federal contractors and all federal grantees to agree they will provide drug-free workplaces as a condition of receiving a federal contract or grant. The act does not apply to those who do not have or intend to apply for contracts or grants from the federal government valued at $100,000 or more nor does it apply to subcontractors or subgrantees. However, contractors performing work in federal facilities are required to have drug-free workplace programs.

The act does not require or authorize drug testing (testing is not prohibited under the act), and alcohol and nonprescription drug use are exempt from drug-free workplace program requirements.

To comply with the Drug-Free Workplace Act, a contractor must do the following:

• Publish and give a policy statement to covered employees that informs them the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance in the workplace is prohibited and outlines the action to be taken against violators
  
  
• Establish a drug-free awareness program letting employees know about the dangers of drug abuse in the workplace, the policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation and EAPs, and the penalties imposed for drug-abuse violations
  
  
• Notify employees they must abide by the policy as a condition of employment on the federal contract and notify the employer if an employee is convicted of a criminal drug violation in the workplace
  
  
• Notify the contracting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace
  
  
• Impose a penalty on any violating employee or require satisfactory participation in a drug-abuse assistance or rehabilitation program
  
  
• Make an ongoing, good-faith effort to maintain a drug-free workplace by meeting the requirements of the act

The penalties against an employer for violating the act include suspended payments for contract or grant activities, terminated or suspended contracts or grants, and prohibition from receiving or participating in any future contracts or grants awarded by any federal agency for a specified period not to exceed five years.

ADA

ADA is enforced by the Equal Employment Opportunity Commission or related human-rights agencies that sometimes carry out investigations and hold hearings at the state or county level. When ADA was enacted in the early 1990s, the drug and alcohol provisions were among the most contentious, and the resulting litigation over enforcement of this law during the past decade has done little to establish true "bright line" tests on what employers can and cannot do. The case precedent may vary depending on the Court of Appeals Circuit in a given area.

The application of ADA to active alcoholics (those still drinking) is particularly confusing because alcohol is a legal substance and an employer's rights are limited to regulation of on-the-job behavior. This makes it problematic if a worker reports to work extremely hung-over and, possibly, still impaired from the night before or from the "hair of the dog" imbibed before coming to a job site in the morning rendering an employee's blood alcohol level below the legal limit. The bottom line under prevailing case law is that alcoholics do not have to stop drinking to be protected by ADA.

In a nutshell, DOL guidance on this subject lays out the following dos and don'ts for maintaining a drug- and alcohol-free workplace:

• Employers may prohibit the illegal use of drugs and alcohol in the workplace.
  
  
• ADA is not violated by tests for illegal use of drugs (but employers must meet state requirements, which may differ from federal standards).
  
  
• Employers may discharge or deny employment to people who currently engage in illegal drug use.
  
  
• Employers may not discriminate against drug addicts who currently are not using drugs and have been rehabilitated or have a history of drug addiction.
  
  
• Employers may not discriminate against drug addicts who are currently in a rehabilitation program, EAPs, outpatient treatment, and support groups such as Narcotics Anonymous or Alcoholics Anonymous and must provide employees reasonable accommodation to attend such programs.
  
  
• Employers may discipline, discharge or deny employment to alcoholics whose alcohol use impairs job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
  
  
• Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
  
  
• Individuals with a record of addiction or who are erroneously perceived as being addicts are covered by ADA guidelines even if they are not addicts.

The Rehabilitation Act of 1973 is enforced under the same legal precedent as ADA. That law requires federal contractors and subcontractors with government contracts in excess of $10,000 to take affirmative action to employ and advance in employment qualified individuals with disabilities.

OSHA and substance abuse

Although OSHA has no specific regulations addressing substance abuse on the job, it has on several occasions issued citations to employers who, the agency found, had workers who had illegal drugs in their systems or were under the influence of alcohol at the time workplace accidents occurred. Those citations are issued under OSHA's General Duty Clause Section 5(a)(1) of the Occupational Safety and Health Act of 1970.

Citations for violating the General Duty Clause are issued when an employer fails to keep his workplace free of a "hazard"; the hazard was "recognized" either by the cited employer individually or the employer's industry generally; the recognized hazard was causing or was likely to cause death or serious physical harm; and there was a feasible means available that would eliminate or materially reduce the hazard. OSHA General Duty Clause violations related to substance abuse have brought civil penalties as high as $21,000 per citation (some cases involved multiple citations arising from the same drug- or alcohol-related accident).

In an interpretative letter issued in May 1998, the agency wrote to the safety coordinator of Starline Manufacturing Co. Inc., Milwaukee: "OSHA strongly supports measures that contribute to a drug-free environment and reasonable programs of drug testing within a comprehensive workplace program for certain workplace environments, such as those involving safety-sensitive duties like operating machinery. Such programs, however, need to also take into consideration employee rights to privacy."

OSHA again is turning its focus to this issue and recently published a fact sheet about substance abuse in the workplace and safety. Click here for a link to the fact sheet. The government notes drug use is greatest among construction industry employees and alcohol and other drug use costs U.S. businesses an estimated $102 billion every year in lost productivity, accidents, employee turnover and related problems.

DOT

With respect to commercial drivers, the Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of employees who operate safety-sensitive transportation in aviation, trucking, railroads, mass transit, pipelines and other transportation industries. The rules apply to operators of commercial motor vehicles—both intrastate and interstate.

With regard to the roofing industry, "commercial motor vehicle" means a motor vehicle used in commerce to transport passengers or property if a vehicle has a gross combination weight rating of 26,001 pounds (11794 kg) or more or, regardless of size, is used in the transportation of materials found to be hazardous and requires the vehicle to be placarded. Some cranes and heavy trucks used to transport construction materials, tars or asphalt may fall within this classification.

DOT publishes rules about who must conduct drug and alcohol tests, and these are codified as 49 CFR Part 40. The rules explain how to conduct those tests and what procedures to use when testing. (A complete discussion of the requirements is outside the scope of this article.) About 12.1 million workers are covered by DOT rules, which are regulated under the agency's Office of Drug & Alcohol Policy & Compliance. The rules also apply to employees who have blood alcohol tests performed that result in readings of 0.04 or higher (about one-half the legal limit in most states).

FMLA

FMLA was enacted in 1993 to assist workers in balancing their family lives and work by letting them take reasonable unpaid leave for certain family events and medical reasons. DOL's Wage and Hour Division enforces FMLA. The act provides that certain employers (those who employ 50 employees or more) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave to care for a newborn, newly adopted or newly placed foster child; to care for a child's, parent's or spouse's serious medical condition; or to care for their own serious medical condition that renders them unable to perform essential job functions.

Workers exercising FMLA leave have their jobs protected, which means employees cannot be fired while on leave or retaliated against for requesting leave. Furthermore, they must be given the same job or a similar job when they return. The employer must continue group health insurance benefits during the employee's leave on the same terms provided when the employee was working.

FMLA interfaces with substance-abuse issues because an employee's decision to seek in-patient treatment for alcoholism or drug addiction qualifies as treatment for a "serious medical condition." Therefore, the worker's job must be held open during this period, and there can be no retaliation against the worker for using the FMLA leave available. Also, note some state laws may have even longer periods of leave available for this purpose (e.g., the District of Columbia's family and medical leave period extends 16 weeks).

Possible tort litigation

Aside from what OSHA or DOT can do to an employer who fails to provide a workplace free from the hazards of impaired workers, the prevalence of drug-free workplaces has established a "standard of care" relied on by judges and juries in tort litigation.

A roofing contractor could be sued, for example, if a non-employee was injured or killed as a result of the actions of an impaired employee who was under the direction and control of the contractor. This is because no workers' compensation shield exists to insulate employers from civil suits. If the injured or killed person was the employee of another contractor on the site, that contractor's insurance company likely would seek to be indemnified by the roofing contractor. And if a member of the public was harmed by roofing materials dropped by the impaired worker or in a traffic accident while the impaired worker was driving a company vehicle, for example, there would be even greater potential tort damages.

It is worth noting that if OSHA also cited the roofing contractor in such an instance, the OSHA citation would constitute negligence per se in any subsequent civil proceeding, making it only necessary to sort out the amount of monetary damages.

Considerations

Still not convinced a substance-abuse prevention policy makes sense for your workplace? Consider the following facts (sources include the National Drug-Free Workplace Alliance, DOL, and Department of Health and Human Services' Substance Abuse and Mental Health Services Administration):

• A majority (74 percent) of current illicit drug users 18 or older are working either full-time or part-time. This means 12.4 million drug addicts are actively employed in the workplace with the highest percentage working in the construction industry.
  
  
• The job classification with the highest rate of active drug use (17.2 percent) and illicit drug use within the past year (25.9 percent) is "construction supervisor." An additional 13 percent of construction supervisors admit to current heavy alcohol use. That means the unsafe and negligent actions of a drug-using supervisor will be directly imputed to an employer for purposes of tort liability and OSHA enforcement actions because those individuals are considered "agents" of management.
  
  
• Drug users—at a minimum—consume almost twice the medical benefits as nonusers, are absent 1.5 times as often and account for more than twice as many workers' compensation claims.
  
  

Accidents and injuries create severe hardships not just for victims but also for employers. A serious incident, especially if related to alcohol or other drug use, can shut down a small business because of the financial effects of litigation. Most important, there is clear evidence a substance-abuse prevention program will save the lives of substance abusers and their co-workers. Don't let your company be the employer of choice for active drug addicts and alcoholics. The stakes are too high.

Adele Abrams is an attorney and trained mediator from Beltsville, Md.

WEB
EXCLUSIVE

• Web exclusive: Click below for more information.
• DOL's drug-free workplace adviser program e-tools and OSHA's substance-abuse fact sheet