Workplace Drug and Alcohol Abuse Laws and Regulations
There are federal laws that provide guidelines on the policies employers can set regarding drug and alcohol abuse in the workplace. Employers can prohibit the use of drugs and alcohol, test for drug use, and fire employees who are engaging in illegal drug use.
The regulations are typically listed in the organization's drug and alcohol abuse and prevention policy. The guidelines may include information on when the company tests for drugs and alcohol, as well as on the consequences of failing a test. The law also provides protection for employees with substance abuse problems and outlines the accommodations that the employer must provide for workers.
In addition to federal law, there may be state laws that regulate employment drug and alcohol testing, and how employers can handle substance abuse problems.
Workplace Substance Abuse Laws and Regulations
The Americans With Disabilities Act (ADA) and the Rehabilitation Act of 1973 both affect drug and alcohol policies. The following outlines aspects of the ADA and the Rehabilitation Act of 1973 and some state statutes that relate to employees with drug and alcohol issues:
- Employers can prohibit the illegal use of drugs and the use of alcohol in the workplace.
- Testing for illegal use of drugs does not violate the ADA (but must meet state requirements).
- Pre-employment testing is often restricted by states to candidates who have already been offered a job. Typically, all candidates need to be treated equally and no individual can be singled out for testing.
- Many states require employers to verify a cause for testing currently employed workers for substances. Employers in those states must have a reasonable suspicion that the employee in question is abusing drugs and that safety or performance has been compromised. Some states can randomly test workers without reasonable suspicion. This practice is usually restricted to situations where safety issues are a concern.
- Employers may discharge or deny employment to those who currently engage in the illegal use of drugs.
- Employers cannot discriminate against drug addicts who have a history of drug addiction or who are not currently using drugs and have been rehabilitated (or who are currently in a rehabilitation program).
- Reasonable accommodation efforts, such as permitting time off for medical care, self-help programs, etc., must be extended to drug addicts who have been rehabilitated or who are undergoing rehabilitation.
- An alcoholic may be determined as an "individual with a disability" under the ADA.
- Employers may discharge, discipline, or deny employment to alcoholics whose use of alcohol hinders job performance or behavior to the same extent that such actions would result in similar disciplinary action for other employees. Employees using drugs and alcohol must meet the same standards of performance and behavior as other employees.
- The ADA does not protect casual drug users. However, those with a record of addiction, or who are falsely deemed to be being addicts, are covered by the Act.
The Americans with Disabilities Act (ADA) prohibits employment discrimination against employees and applicants with disabilities in organizations that employ 15 or more employees.
Similarly, section 503 of the Rehabilitation Act of 1973 makes it unlawful for contractors and subcontractors with the Federal government to discriminate against qualified individuals with disabilities.
Health Care Plan Requirements
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and later the Affordable Care Act mandated that non-grandfathered health care plans include mental health and substance abuse disorder services, including behavioral health treatment. These stipulations still govern most employer-sponsored plans. However, an executive order under the Trump administration has given states more authority to designate what constitutes essential services within the exchange-based plans for individuals in their jurisdiction. The executive order encouraged the creation of short-term plans with more limited costs and coverages.
The Henry J. Kaiser Foundation has researched 24 distinct short-term insurance products currently marketed in 45 states. They determined that 43% of the plans did not cover mental health services, and 62% did not cover substance abuse treatment.
Many states still have some statutes in place regarding the requirement of mental health services to be included in individual healthcare plans. Some states require parity between mental health services and benefits that plans provide for physical ailments.
Substance abuse is often covered under the umbrella of mental health in these states. In those parity states, health care plans must provide coverage for substance abuse that is comparable to coverage for physically-based medical problems.
According to the National Conference of State Legislatures (NCSL) "Many state laws require that some level of coverage be provided for mental illness, serious mental illness, substance abuse, or a combination thereof. These states are not considered full parity states because they allow discrepancies in the level of benefits provided between mental illnesses and physical illnesses. These discrepancies can be in the form of different visit limits, co-payments, deductibles, and annual and lifetime limits."
Other states mandate that an option must be provided for mental health coverage but do not dictate that there be minimum coverage or parity. Employers in these states can offer plans that charge applicants an extra premium for mental health coverage if employees decide to elect that optional coverage.
The NCSL indicates that "Laws in at least 38 states include coverage for substance abuse, alcohol or drug abuse."