Congress intended the ADA to be neutral on testing for substance abuse. Persons using drugs or alcohol are specifically exempted from the coverage of the ADA, and tests for substance abuse are not regulated by the ADA. This means that employers can do preemployment drug screening and refuse to hire persons testing positive (as allowed by other laws and union agreements) without violating the ADA. Persons in the workplace may also be screened and disciplined without violating the ADA. However, the ADA does apply to a person who has “successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use” or “is participating in a supervised rehabilitation program and is no longer engaging in such use.”

The employer may adopt policies, including periodic drug testing, to ensure that such persons are not engaging in substance abuse. The employer may prohibit the use of alcohol and illegal drugs at the workplace, may require that employees not be under the influence of illegal drugs or alcohol while at work, 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 that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” The employer may also regulate or ban smoking in the workplace without violating the ADA.

Physicians involved in drug and alcohol screening programs should appreciate that alcohol remains the most serious drug problem in most workplaces. It is medically (though perhaps not legally) unjustifiable to screen for illegal drug use and not screen for alcohol use. Although the legislatures and the courts are increasingly allowing and encouraging random drug testing, there are arguments that such policies are unnecessarily intrusive. They present ethical problems for the supervising physician who is put in an adversary position with the employee. Moreover, the evidence is not conclusive that such programs substantially improve workplace safety or productivity. Physicians advising on such programs should consider behavior-related testing as an alternative to random screening. Behavior- related testing is less intrusive to innocent workers. Most important, it may identify workers with dangerous personality problems who are not drug users but need medical or psychiatric attention.