Even if an employer does not institute a drug and alcohol testing policy, the employer is well advised to put its employees on notice that it will not tolerate drug or alcohol use, sale, possession, or the like in the workplace, on work time or while operating company vehicles or machinery and that violations of the policy will result in termination of employment. Communication of such a policy to employees will put them on notice that they are subject to discharge for violating the policy. As discussed above, employers are advised to seek legal advice prior to counseling, disciplining or discharging employees for reasons relating to substance abuse, due to the potential liability for defamation and disability discrimination.

The Drug Free Workplace Act and Other Federal Requirements

The Drug Free Workplace Act of 1988 is a federal law which requires that all businesses which have contracts with the federal government exceeding $100,000 must certify that they will maintain a drug free workplace. (244) The law requires that the employer notify employees of its drug free workplace policy. The policy must state that the unlawful manufacture, distribution, possession or use of a controlled substance is prohibited in the workplace. The employer must also establish a drug free awareness program to inform employees about the dangers of drug abuse, potential disciplinary actions for violations of the policy and available drug counseling and rehabilitation programs. Various agencies and departments of the federal government may impose additional requirements on government contractors.

The law also requires that any employee who is convicted of a criminal drug offense occurring in the workplace must notify the employer within five days after the conviction. The employer must notify the government contracting officer of the conviction within ten days after learning of the conviction. Within 30 days after receiving notice of the conviction, the employer must either discipline the convicted employee or require the employee to satisfactorily complete a drug treatment program. Any business which violates the Act risks losing its federal contract.

The Drug Free Workplace Act applies to drugs only and not to alcohol, but employers who are subject to the Act are strongly encouraged to prohibit alcohol as well as drugs in their policies. The Act does not require drug testing. Other federal rules and statutes, however, may have their own requirements with regard to drug and alcohol policies and testing. For example, employers with employees in positions regulated by the federal Department of Transportation (DOT) must conduct certain mandatory drug and alcohol testing under rules issued by the DOT and its operating administrations. Employees subject to DOT regulation include certain truck and bus drivers, workers involved in gas and pipeline operations, and airline and merchant marine personnel. The federal rules on drug and alcohol testing are detailed and complex in nature. For this reason, employers whose employees may be subject to DOT regulation should consult their legal counsel for assistance in complying with these rules.

CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.

This post is also part of a series of posts on dealing with alcohol or drugs in the workplace.

444. Minn. Stat. § 181.13(b) (2007).