The Americans with Disabilities Act of 1990, as amended (ADA) considers alcoholism to be a “disability.” Individuals who suffer from alcoholism are entitled to the protections of the ADA just as those with significant mental illnesses or those confined to wheelchairs are. Thus, employers should be aware of certain legal issues, concerns, and prohibitions when questioning job applicants or employees about alcohol intake or when conducting alcohol testing.
At its most basic, the ADA prohibits discrimination against individuals with disabilities. This means that employers are prohibited from asking disability-related questions or conducting medical examinations prior to making a conditional job offer. A “disability-related question” is a question that is likely to elicit information about a disability. Examples of these types of questions are, “Do you drink regularly?” or “Have you ever attended an Alcoholics Anonymous meeting?” A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. The ADA considers an alcohol test to be a medical examination.
For purposes of the ADA and alcohol testing, there are three relevant stages in the employment process: (1) pre-offer, (2) post-offer, and (3) active employment. Employers have different obligations towards applicants and employees at each of these stages.
At the pre-offer stage, the ADA prohibits an employer from making any inquiries about medical conditions or disabilities, and strictly prohibits alcohol testing. In addition, while an employer may technically ask an applicant whether he or she drinks alcohol, and although simply drinking alcohol would not necessarily constitute alcoholism, questions about the amount or frequency of alcohol intake could elicit information about alcoholism. Because of this risk, employers should not ask job applicants any questions related to alcohol intake.
An employer that has extended a job offer to an applicant may conduct a medical examination and ask the applicant disability-related questions. Therefore, after an employer makes a job offer, it may conduct alcohol testing, and it may condition the offer on the results of the alcohol test. However, if an employer decides to conduct alcohol testing at this stage, it should test all individuals who receive job offers in the same job category.
An employer may revoke a job offer due to the results of an alcohol test if it does so for reasons that are “job-related and consistent with business necessity.” To be job-related and consistent with business necessity, the employer must have a reasonable belief, based on objective evidence,
- that the individual is unable to perform the essential functions of the job based on the alcohol test results or
- that the individual poses a direct threat (a significant risk of substantial harm) to himself or herself, or others based on the alcohol test results, and that the threat could not be eliminated or reduced by a reasonable accommodation.
For example, if an employer hires an individual in a position that requires the individual to operate a vehicle, a failed alcohol test may indicate that the individual is unable to perform the essential functions of the job and/or would pose a direct threat. Finally, employers must keep all information related to the alcohol test confidential.
An employer may also conduct alcohol testing on active employees if the test is “job-related and consistent with business necessity,” meaning the test must be intended to inquire into the ability of the employee to perform job-related functions. Generally, testing for the purpose of achieving protection and safety of employees will satisfy this standard. Below is a list of further actions employers are permitted to take, depending on the jurisdiction in which the workplace is located, with regard to active employees.
- Employers may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace.
- Employers may test an employee if they have a reasonable belief that the employee is under the influence of alcohol at work.
- Employers may test employees following a workplace accident. Depending on state law provisions, employers may test employees randomly.
In order to protect themselves from legal risks and challenges based on alcohol testing, we encourage employers to include provisions addressing alcohol testing in their employee handbooks and/or through a written drug and alcohol policy.
M. Tae Phillips is an associate in the Birmingham office of Ogletree Deakins.
Michael Clarkson is the Office Managing Shareholder of the Boston office of Ogletree Deakins and Chair of the Drug Testing Practice Group.