Employment & Labor Law
Follow Federal Guidelines When Asking Job Applicants About Drug and Alcohol Use
INSIDER’S COMPLETE GUIDE TO MANAGING COMMUNITY ASSOCIATIONS
Jay Nussbaum
Berlandi Nussbaum & Reitzas LLP

What can you ask a job applicant about drug and alcohol use without facing a discrimination lawsuit? You must be very careful if you have 15 or more employees. (The law doesn’t apply to companies with fewer than 15 employees.) While you want a workplace free of drug- and alcohol-related problems, the Americans with Disabilities Act (ADA) bars companies with 15 or more employees from discriminating against the disabled, including those who are recovered or recovering alcoholics or drug addicts. It’s easy to fall into a trap and ask the wrong questions. And if you do, you could be held liable for damages. In 1999, Wal-Mart had to pay $ 157,500 for asking improper questions [Equal Employment Opportunity Commission v. Wai-Mart Stores, Inc.). Using an Oct. I 0, 1995, memo issued by the Equal Employment Opportunity Commission (EEOC), we’ll help you identify the questions you can legally ask job applicants about drug and alcohol use. The memo indicates that a very fine line exists between questions that are okay and those that could get you into trouble. To help you screen job applicants without violating the ADA, we’ll tell you what the memo says about drug and alcohol-related questions. We’ve also put together a chart separating the good questions from the bad ones (seep. 6).

Don‘t Ask Questions About Drug or Alcohol Disabilities

Having employees who don’t use drugs and alcohol on the job is of prime importance to community association members and managers, notes Larry Niemann, general counsel to the Texas Apartment Association. Employees who use drugs and alcohol on the job are more likely to cause accidents and create problems with members.

But in your zeal to find out about an applicant’s drug or alcohol use, don’t ask questions about disabilities, that could put you in the wrong. TI1e ADA makes it illegal to discriminate based on a job applicant’s disability, and recovered drug addicts and alcoholics are considered to have a disability under the ADA. You can’t deny them employment because of their past condition. The same is true of recovering drug addictsthose who are enrolled in a rehabilitation program.

Current alcoholics are also considered disabled whether or not they are in a rehab program, says Niemann. As a general rule, you can’t ask any question that’s likely to bring out information about a disability, including past drug addiction or past or present alcoholism. These questions don’t belong on an application and shouldn’t be asked in an interview.

An employer can ask disability-related questions or require a medical exam only after it has made a ” real” job offer. The EEOC considers a job offer to be “real” only if the employer has evaluated all nonmedical information it reasonably could have obtained before making the offer. (The offer can sti II be contingent on an applicant’s answering disability-related questions and/or passing a medical exam.) Even a job applicant who isn’t disabled has the right to sue you for asking the wrong questions [Mack v. Johnstown America Corp.].

Asking About Illegal Drug Use

The memo allows you to ask a job applicant if he or she currently uses illegal drugs. Someone who currently uses illegal drugs isn’t protected by the ADA. If an applicant admits to currently using illegal drugs, you can also ask which drugs, says Chris Kuczynski, A.D.A. Policy Director for the EEOC.

But asking about an applicant’s prior illegal drug use gets you into a delicate area. You may not ask questions that are likely to bring out information about past addiction to illegal drugs or controlled substances, because past addiction is considered a disability. But past casual use isn’t considered a disability. That means you may ask about an applicant’s casual use of drugs in the past (for instance, “Have you ever used illegal drugs?”). But you can’t word a question so that the answer would reveal whether the applicant was ever addicted to drugs (for instance, “Have you ever been addicted to drugs?” or “Have you ever been treated for drug addiction or abuse?”). And if an applicant answers yes to “Have you ever used illegal drugs?”- you can’t ask about the extent of the applicant’s past drug use.

Asking About Legal Drug Use

The EEOC memo says that you can’t ask employees about prior or present legal drug use, unless the question is “innocuous” and won’t bring out information about a disability. Many questions about legal drug use are likely to bring out information about a disability (for instance, “What medications are you currently taking?” or “Have you ever taken AZT?”-AZT is an AIDS drug). questions are innocuous and unlikely to bring out information about a disability. For example, if the applicant volunteers that she’s coughing and wheezing because of her allergies, you can mention a medication that you’ve found helpful for your allergies and ask the applicant if she’s tried it.

Asking About Alcohol Use

You can’t ask questions that are likely to bring out information about alcoholism, which is a disability, whether past or present. You can ask an applicant whether she drinks alcohol or whether she has been convicted for driving under the influence, because these questions don’t reveal alcoholism. But asking an applicant how much she drinks is likely to
bring out information that could reveal alcoholism.

Asking About Convictions

The EEOC memo says that under the ADA you can ask applicants about their conviction records because these records aren’t likely to bring out information about a disability. You can specifically ask if the person has ever been convicted of driving under the influence of alcohol. According to Kuczynski, you can also ask whether a person has ever been convicted for the use or sale of illegal drugs. And you can ask applicants whether they’ve ever sold illegal drugs or whether they currently sell illegal drugs, says Kuczynski. Dealing drugs isn’t a disability, he notes. The EEOC memo says that under the ADA, employers may ask applicants about arrest records. But our legal experts warn that asking about arrest records can get you into trouble under other federal law and the laws of many states. They recommend that you not ask about arrests.

Drug Testing Rules

The EEOC memo says that you may test applicants to determine whether they currently use illegal drugs. But check with your attorney to determine whether your state allows you to require applicants to submit to drug testing. If you test for drugs and get a positive result, you can ask the applicant questions about what legal medications he or she was taking that could account for the result.

Alcohol Testing Rules

The EEOC memo bars you from testing job applicants for alcohol, because alcohol testing is considered a medical test. Note that EEOC rules allow you to test someone for alcohol only after you’ve made the person a job offer contingent upon passing the test. +

What‘s OK, What‘s Not OK

Based on the EEOC memorandum. here’s a guide to the questions you can and can’t-ask prospective employees about drugs and alcohol before you decide whether they’re qualified for the job. Most of these questions were taken directly from the EEOC memo.

OK

• Do you currently use illegal drugs?
• If you do. what illegal drugs do you currently use?•
• Have you ever used illegal drugs?
• When was the last time you used illegal drugs?
• Have you used illegal drugs in the past six months?
• Have you ever been convicted for any drug- or alcohol-related activity?•
• Have you ever engaged in the sale of illegal drugs?*
• Do you currently engage in the sale of illegal drugs?•
• Do you drink alcohol?
• Have you ever been convicted for driving under the influence of alcohol? •
• If you test applicants for drugs and a test result is positive. you can ask the applicant the following:
• What medications have you taken that might have resulted in this positive test result?
• Are you taking this medication under a lawful prescription?

NOT OK

• What medications are you currently taking?
• Have you ever taken (name of legal drug)?
• How often did you use illegal drugs in the past?
• Have you ever been addicted to drugs?
• Have you ever been treated for a drug addiction?
• Have you ever been treated for drug abuse?
• How much alcohol do you drink?
• Have you ever participated in an alcohol rehabilitation program?

LEGAL CITATIONS

• 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).
• Mack v. Johnstown America Corp.: No. CIV A. 97-325J, 1999
• WL 304276 (U.S. Dist. Ct. W.O. Pa. 5/12/99).

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