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Questions about Drug-Free Workplace Policy

Drug-free workplace programs are intended to protect a workplace from the health, safety, and productivity hazards that may be caused by employees' use and/or abuse of alcohol or drugs. A thorough drug-free workplace program will typically have five elements: a drug-free workplace policy, employee education, employee assistance, drug testing, and supervisor training,. The program may vary from one workplace to the other as each work environment is unique.

Below are responses to top questions on laws related to drug-free workplace programs answered by legal experts.

A male colleague suspected of drug abuse was allowed to show prescription side-effects while I have been denied the same rights and have been asked to resign. Is this legal?

Your employer acts within legal rights if it terminates you for reasonable doubt. However, if you sue them for violation of the drug testing statute, they will have to prove that they meet the set standards. In your case, if you believe that they were discriminating against you based on your gender, you may contact the Equal Employment Opportunity Commission (EEOC) to make a claim of “disparate” or different treatment. Their lack of reasonable suspicion will likely be taken into consideration in this claim.

Can we terminate – as per our workplace policy – an employee who uses medical marijuana as per prescription?

Reasonable suspicion is typically enough to test an employee for drug use under your testing policies. Since you are aware of the prescription for medical marijuana, you may enforce your drug policy and terminate the employee, even with the presence of the prescription.

The state of Ohio has a drug-free workplace program, wherein an employee involved in an accident must take a drug-test to prove that he was not under the influence of any drug or alcohol. Non-compliance may lead to termination or denial of worker's compensation. Is this a legal search?

Yes, it is legal to test for drug and alcohol abuse in the case of an accident. This is different from the doctrine of “innocent until proven guilty”, which applies in criminal charges. Since this is not a criminal proceeding, the doctrine would not apply. Further, the notion of illegal search refers unauthorized search of a person or place by the police. Since your employment and acceptance of its conditions is voluntary, the law would say that you have consented to the search unlike a citizen who has not given consent to a search or seizure.

Is reporting a violation of the employer's drug abuse policy considered protected activity?

Reporting a violation of the employer’s policy should be considered a protected activity. If you can prove your termination was close in time to your report, you may sue for retaliation. In return, the employer will have to respond with a legitimate business reason for the termination. You would then need to argue and provide evidence that the reason presented is merely a pretext to terminate.

Is drug addiction covered under the Americans with Disabilities Act (ADA)?

Illegal drug users are not protected under the ADA as “individuals with disabilities”. However, persons previously addicted to drugs, no longer using drugs illegally, and currently undergoing treatment are protected under the Act against discrimination on the basis of past drug addiction. Also, individuals who are erroneously perceived as drug addicts are protected under the ADA. This, if an employee is not found using drugs, his rights are protected under the ADA.

It is important to understand there is no uniform law or process for drug abuse screening. This means an employer is free to screen any employee as long as it is not discriminatory in singling out the employee. The employer is also required to respect the privacy of the employee by keeping the results of the tests in a separate, confidential file. Both employers and employees will benefit from understanding the intricacies of the law by speaking to a legal expert.
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