Can You Be Fired for Suspected Drug Use?

If you’re battling with an addiction, you might be wondering if your employer can terminate your employment. According to NCDAS, roughly half of the US population over the age of 12 has used an illicit or illegal drug at least once in their lifetime. The CDC reports that 46 million American adults had substance use disorder in 2022. Of those 46 million, 30.1 million were working at a job. The truth is that your employer may be able to terminate your employment, but it depends on various factors, including drug testing laws, company policy, and whether the substance in question is an illegal drug or a prescription drug. Let’s take a look at the implications of drug use in the workplace and if an employer can legally fire an employee for using drugs.

Implications of Drug Use in the Workplace

Employees who use illicit substances often suffer from excessive absences and poor performance. The Washington University School of Medicine in St. Louis reported that individuals who have alcohol use disorder miss up to 32 days a year. That’s nearly three days a month, and if we assume that each individual works 8 hours a day, it’s 256 missed hours each year. By contrast, employees without alcohol use disorder tend to miss about 10 days a year. When you add up all the missed days by everyone with alcohol use disorder, it totals more than 232 million days. That’s a lot of lost productivity.

Legal Framework Surrounding Drug Use in the Workplace

If you take illicit substances and your employer finds out, they may be able to terminate your employment, according to the policies in the company’s employee handbook. However, you may be surprised to find out that there aren’t any requirements, regarding drug use, for private employers. The exception involves grantees and federal contractors. However, when employers craft policies regarding drugs, they have to closely pay attention to several laws, including the Americans with Disabilities Act of 1990, the Drug-Free Workplace Act of 1988, the Family Medical Leave Act of 1993, and the American Civil Rights Act of 1964.

The Americans with Disabilities Act of 1990

The first act that US companies need to pay attention to is the Americans with Disabilities Act of 1990. It states that employers cannot discriminate against individuals who have a physical disability. Addictions can fall under this category. However, in order for the ADA to apply, the individual must either be free and clear of illicit substances after going through a treatment program, or they must be enrolled in a substance abuse program. This means that if you are addicted to a substance and enrolled in a drug treatment program, your employer cannot discriminate against you solely based on your past drug use or your admission into drug treatment. Your employer may still be able to terminate your employment for another reason.

The Family Medical Leave Act of 1993

The  Family Medical Leave Act of 1993 applies to businesses that employ more than 50 people. It states that if an individual has worked at least 1250 hours in the preceding 12 months, they are entitled to up to 12 weeks of unpaid leave to treat a serious health condition or the serious health condition of one of their family members. Getting drug treatment does fall under the “serious health condition” clause. This means that if an employee decides to enroll in a substance use program and take FMLA, their employer cannot retaliate against them. They also cannot refuse to promote them based on that treatment status, and they cannot terminate them. This also applies to any close family members who might request FMLA leave to care for an individual undergoing substance abuse treatment.

The American Civil Rights Act of 1964

The  American Civil Rights Act of 1964, in this context, means that employers that have more than 15 employees cannot target specific protected groups for drug testing and fail to test the rest of the staff. This act prohibits discriminating against people based on their religion, race, gender or nationality.

The Drug-Free Workplace Act of 1988

The Drug-Free Workplace Act of 1988 applies to contractors and grantees that perform work for the federal government. Under this act, federal workplaces and companies that have federal contracts or grants of at least $100,000 are responsible for implementing drug-free workplace programs. These programs can include drug testing and helping individuals who test positive get treatment for their substance abuse.

Employer Policies on Drug Use

Certain types of employers must have documentation on their drug use policies. These include federal agencies, companies that receive federal grants or contracts, companies that are in security-sensitive industries and work with the Department of Defense, and companies that work in safety-sensitive industries. Other employers may also choose to have drug-free workplace policies. The best place to put drug-free policies is in the employee handbook. To make sure all employees have read the policy, make sure to have a signature page that is turned in to HR. Employers can also make it part of their new hire training, and they can put the policy on their internal website so that employees can view it whenever they need to.

In general, an employer should have:

• A formal workplace drug-free policy that is given to every employee.
• A drug awareness program that includes suggested treatment options.
• Companies that have federal contracts or grants need to have a statement on how to report criminal drug violations in the workplace, both to the company and to the federal contracting agency.
• A policy outlining what actions will be taken for any employee who is convicted of a criminal drug violation at the workplace.
• A dedication to maintaining all the requirements of the Drug-Free Workplace Act

When Employers Can Drug Test

Employers have the right to drug test employees under certain conditions.

• Pre-Employment Drug Testing – Employers are allowed to test employees for illicit substances as part of the hiring process, if the candidate has been offered a position.
• Drug Testing After Rehabilitation – If an employee tests positive for drugs and goes to drug rehab, the employer is allowed to test them after they’ve returned to work.
• Drug Tests for Reasonable Suspicion – In some cases, employers may test employees for drug use if they suspect the employee is using drugs. However, this usually comes with restrictions. Usually, the employer or another employee has to see the individual using drugs or witness physical symptoms that could indicate drug use.
• Random Drug Tests  – An employer’s ability to conduct random drug tests depends on the state. Some states, like Alaska, Connecticut and Maine, prohibit or severely restrict an employer’s ability to conduct random drug tests.
• Drug Testing After an Accident – Employers are allowed to drug test employees if they’ve been involved in a workplace accident.

How Drug Testing Is Conducted

Employers typically have urine tests performed. However, other testing methods may be utilized, including hair, blood and saliva. If the employer works under government contracts or grants, they should use a lab that is HHS-certified with access to Medical Review Officers. The drug tests may be performed at a lab or the company can opt to have a trained technician come to the workplace and collect specimens.

Grounds for Termination: Suspected vs. Confirmed Drug Use

The action taken by the employer may depend on whether the drug use is suspected or confirmed.

Suspected Drug Use

In general, employers should look for physical symptoms of alcohol and/or drug use. These might include smelling alcohol on the individual or witnessing unsteady walking. Slurred speech, confusion, dilated pupils, red eyes and difficulty focusing on their tasks can also be signs of drug use. However, supervisors should also be aware that some medical issues could cause similar symptoms.

If an employer suspects that an employee is under the influence of drugs or alcohol, the supervisor should call their drug testing lab and request an immediate on-site test. If the employee’s job requires them to work with heavy machinery or drive, they should be removed from their work area. During this time, the supervisor should also ask them to agree to submit to a drug test and have them sign a consent form that lists the reasons why they are being drug tested so that the employer and employee both have documentation of the incident.

While the employer might hope that the employee signs the form, he or she can refuse. In that instance, it’s important to document the refusal because the employer may be able to fire the employee.

Confirmed Drug Use

If the employee agrees to and takes the drug test and it comes back positive, the employer has a few options, but those options depend on the state. For example, in Illinois, employers have the right to prohibit the use of marijuana while they are working or on call. They cannot prohibit employees from using marijuana during their off hours. Illinois does not restrict the use of drug testing for random tests, after accidents or for reasonable suspicion.

If an employee’s drug test does come back positive, the employer should follow the guidelines in their drug-free workplace policy and consult HR or an attorney. This is to make sure that they are following all the laws regarding drug use in the workplace. Some policies may stipulate that the employee has to be terminated immediately. However, other companies may give the employee the chance to enter rehab rather than be terminated. Upon the completion of the drug treatment program and a negative drug test, the employee may be allowed to return to their old job or a similar job.

Employee Rights and Protections

People with disabilities are protected by the ADA, but drug addiction isn’t considered a disability if the employee is still a current drug user and has not sought treatment. If the employee is caught using drugs or fails a drug test, the employer is within their rights to deal with that employee in accordance with their drug-free workplace policy, providing that every employee is held accountable under that policy.
The ADA does apply to individuals who have a history of drug use but are now sober. It also applies to individuals who are currently undergoing treatment for a drug or alcohol addiction, and it applies to individuals who have been accused of using drugs but are not using them.

It’s also important to note that the term ‘current drug user’ can be ambiguous. Several court cases have made their way through the system, including Zenor v. El Paso Healthcare Systems, Ltd., Shafer v. Preston Memorial Hospital Corp., and Salley v. Circuit City Stores, that have established somewhat of a precedent for the definition of ‘current drug user’. Those court cases have determined that someone who quit using in the preceding weeks or months may still be considered a current drug user. The most egregious of these cases was Shafer v. Preston Memorial Hospital Corp. In this case, Shafer was a nurse who stole patient medication to feed an addiction. The hospital sent her to rehab, and she completed that rehab. Directly after she completed rehab, she was told that her services were no longer needed. In that case, the court ruled that Shafer was still considered a current drug abuser because she had used illicit substances in the weeks and months leading up to her rehabilitation.

The ADA and Alcohol Addiction

Alcoholism is considered separate from drug addiction as far as the ADA is concerned. Individuals with alcoholism or who are recovering from alcohol abuse are protected under the ADA if the alcoholism has significantly limited the individual’s life activities. If it can be proven that the individual’s life activities were not impaired, it’s unlikely to qualify as a disability under the ADA.

Understanding Unfair Termination in Regards to Addiction

Many jobs in the US are considered ‘at will’. This mans that the employer can let the employee go for almost any reason, so long as that reason is not discriminatory or covered by the ADA. Additionally, an employer cannot terminate an employee or refuse to hire an employee based on erroneous assumptions. For example, if an individual has been prescribed medications that show up in drug tests and the employee has provided that documentation, the employer cannot refuse to hire them or continue their employment solely because of the failed drug test.

This type of incident may happen if an individual recently enrolled in an opioid treatment program and was prescribed methadone. Methadone can show up in drug tests. If, after undergoing drug treatment and adhering to their methadone regimen, an individual applies for a job and fails the pre-employment drug screening based on the prescribed methadone, that individual may have a legal case against the employer.

Challenging Unfair Termination

If you’ve been unfairly terminated due to suspected drug use, there are steps to can take to challenge the separation.

1. Gather any documentation you need in order to support your case.
2. Find a good wrongful termination lawyer and schedule a consultation. A lawyer will be able to tell you if you might have a case against the employer.
3. File a complaint with the company’s HR department.
4. File a complaint with the EEOC.
5. Be open to presenting your evidence at trial.

Employer Responsibilities and Best Practices

If you’re an employer, it’s important to take a few things into consideration when writing your drug-free workplace policies. First, you should always strive to develop fair policies that don’t discriminate against certain groups of people. Most employers will want to consult with a lawyer or an HR professional who specializes in writing workplace drug policies. This is to ensure that the language is clear and easily understandable. Next, make sure the policies are evenly applied across your organization.

In addition to writing the policy and making sure that everyone has a copy, you may want to develop an Employee Assistance Program that includes how to get help for drug addiction. You might even have a number they can call or a list of suggested rehabilitation centers.

By having a clearly defined policy and an EAP, your company will be balancing enforcement with compassion, and giving your employees every chance for success.

Conclusion

In order to maintain a safe workplace and remain in compliance with federal laws, state laws, and any federal contracts or grants, it’s crucial to have a comprehensive drug-free workplace policy. This written policy should cover both illegal drugs and alcohol policy, as well as the handling of positive drug test results. If you suspect an employee is using illicit substances, prescription drugs, or alcohol while on the job or before work, you’ll need to create a trail of documentation regarding their job performance and work performance. This is to ensure that any disciplinary action or termination is legally justified under employment law, especially in at-will employment situations.

Employees should strive to understand their rights in the workplace, their employer’s drug policies, and any reasonable accommodations available for those with a medical condition related to substance use. If someone needs help, they should consult their Employee Assistance Program (EAP), human resources, or contact Illinois Recovery Center today to explore rehabilitation programs. Seeking legal advice may also be necessary to navigate issues related to employment law and ensure compliance with company policies and human services regulations.

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