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As an employer, it’s important to know the signs of substance abuse. You want a workplace without drug and alcohol abuse, but substance abuse is a sensitive topic. The Americans with Disabilities Act (ADA) prohibits companies with 15 or more employees from discriminating against the disabled- and that includes individuals who are recovered/recovering drug addicts and alcoholics.

A memo issued by the Equal Employment Opportunity Commission (EEOC) in1995 details the fine line that exists between questions employers may legally ask job applicants and those that will get them into trouble. Here’s what that memo has to say about questions having to do with drugs and alcohol:

1. Legal Drug Use

According to the EEOC, it’s only okay to ask an employee about prior or present legal drug use if the questions wont bring to light information about a disability. That means that questions like “What medications are you currently taking?” are a no no.

2. Alcohol Use

Employers can’t ask any questions that are likely to bring out information about alcoholism, which is considered a disability. It’s okay to ask applicants whether they do drink, or even if they’ve ever been convicted for driving under the influence. These questions don’t necessarily reveal that a person is/was an alcoholic.

3. Illegal Drug Use

The EEOC allows an employer to ask an applicant whether he or she currently uses illegal drugs, as such a person is not protected by the ADA. If the answer is yes, you’re also able to ask which drugs they are using. Past drug use is a little tricker- past addiction to illegal drugs is considered a disability and is therefore off limits. But past casual drug use is not considered an addiction. Therefore, be sure to be careful with the phrasing of your question (“Have you ever used illegal drugs?” vs. “Have you ever been addicted to illegal drugs?”)

4. Drug Testing

The EEOC says that it is okay to test applicants in order to determine whether they currently use illegal drugs. However, because rules very from state to state be sure to check whether the state you are in allows you to require applicants to undergo drug testing.

5. Alcohol Testing

The EEOC prohibits an employer from testing job applicants for alcohol. Alcohol is considered a medical test, and EEOC rules allow you to test an individual only after you have made the applicant a job offer.

Sources:

 Americans with Disabilities Act: 42 USC § 12101 er seq. (1990).

Equal Employment Opportunity Commission v. Wai-Mart

Stores, Inc.: 202 F.3d 281 (U.S. Ct. App. 10th Cir. 1999).