Masonry Magazine April 1999 Page. 24
Alcohol and other drug testing laws generally restrict the scope of testing by both public and private employers (for instance, to applicants or to employees for which there is a "reasonable suspicion" of an impairment) and set out procedural safeguards and privacy protections.
Additionally, courts in a number of states have developed legal theories that may restrict private sector workplace testing. For example, some states have adopted a cause for action for wrongful discharge (such claims represent an erosion of the traditional "employment at will" doctrine). Under this cause of action, an employee may claim that a discharge based on a refusal to submit to a drug test or on a positive test result violates public policy (for instance, a privacy guarantee contained in a state constitution applicable to the private sector) or conflicts with an express or implied employment contract that prohibits arbitrary or bad faith dismissals.
Apart from wrongful discharge claims, employees may have a cause of action based on tort claims. For instance, the following claims may be raised: defamation (i.e., a reckless or excessive dissemination of false drug testing information), invasion of a common law right of privacy (i.e., a highly offensive or intrusive use of testing), and negligent or intentional infliction of emotional distress.
The Americans With Disabilities Act of 1990 (ADA) prohibits private and state and local governmental employers, labor organizations, joint labor-management committees, and employment agencies from discriminating against qualified individuals with a disability in all aspects of employment. The law addresses employers with 15 or more employees.
An entity covered by the ADA may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees; may require the employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace; may require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act of 1988; and may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the entity holds its other employees, even if any unsatisfactory performance or behavior is related to the employee's drug use or alcoholism.
Under the ADA, employers are required to attempt to accommodate the physical and mental limitations of qualified disabled persons unless, based on considerations relating to cost and disruption to business operations, accommodation would result in an undue hardship. Individuals disabled by alcoholism are entitled to the same protection accorded other individuals with disabilities; however, the Act carves out a broad exemption regarding drug users.
The ADA expressly permits an employer to deny employment opportunities to an individual because he or she is currently engaging in the illegal use of drugs. However, the act does protect from discrimination a person who has successfully completed drug rehabilitation or who is participating in a supervised or professionally recognized self-help drug rehabilitation program and is no longer engaging in the illegal use of drugs, or a person who is erroneously regarded as a current drug user but is in fact not using drugs.
The ADA permits employers to administer tests for illegal drugs use to applicants and employees, and allows employers to take adverse action
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