Laws are constantly in flux regarding drug use and related issues. While this is a complex area of the law, there are three key things to know:
1. Drug Testing. Private employers have long been within their rights to conduct testing for new hires and in some post-accident situations. However, the federal government recently issued new rules that spilled over into the area of employee drug testing. As a result, employers had to take a closer look at their policies and roll back rules requiring automatic drug testing in the event of accidents. While employers can still test in these situations, they must use discretion and have a reasonable belief that drug use contributed to the accident. And more changes may be coming soon.
2. Employee Drug Use – Is it Legal? Over half of the states now permit some form of medical marijuana use, a handful of others are battling over CBD-product laws and still many others allow for recreational marijuana use. The confusion arising from this is compounded by federal law which still criminalizes marijuana use/possession. The bottom line: while employees may be disciplined for being under the influence of drugs while on the clock, it is not as clear for off-the-clock drug use. Thus, knowing your governing state laws is essential.
3. Does My Employee with Drug Addiction Have a Legal Disability? It depends on whether the employee is currently using drugs. An employee actively or currently using drugs is not protected under the ADA. However, a recovering drug addict may have a legal disability under the ADA. Employees who are covered are entitled to the same protections as other disabled employees. In such situations, common accommodations include time off to attend meetings or counseling.