Implementation Guidelines - Federal Transit Administration - U.S. ...

sensitive duties for the illegal use of drugs and for on-duty impairment by alcohol; and (2)
remove such persons who test positive for illegal use of drugs and on-duty impairment by
alcohol pursuant to paragraph (1) from safety-sensitive duties in implementing subsection (c).
(Subsection (c) includes the statutory language cited above [§104(e)]. These ADA provisions
clearly specify that the ADA does not interfere with the compliance by covered employers with
DOT regulations concerning drug and alcohol use, including requirements for testing and for
removing persons from safety-sensitive positions who test positive for drugs or alcohol. Under
the ADA, an employer is not viewed as “discriminating” for following the mandates of DOT
drug and alcohol rules.
In considering the effects on the personnel actions that employers choose to take after a
safety-sensitive employee tests positive for drugs or alcohol or otherwise violates DOT drug or
alcohol rules, it is important to note that the ADA’s prohibition of employment discrimination
applies only with respect to a “qualified individual with a disability.” The ADA specifically
provides that an employee or applicant who is currently engaging in the illegal use of drugs is
not a “qualified individual with a disability” (§104(a)). The ADA does not protect such an
employee from adverse personnel actions. For purposes of the ADA, the drugs that trigger this
provision are those that the use, possession, or distribution of which is prohibited by the
Controlled Substances Act (§101(6)). The five drugs for which DOT mandates tests fit this
definition (alcohol is not a drug covered by the Controlled Substances Act).
What does “currently engaging” in the illegal use of drugs mean? According to the Equal
Employment Opportunity Commission (EEOC), whose rules carry out Title I, the term
“currently engaging” is not intended to be limited to the use of drugs on the day of, or within a
matter of days or weeks of, the employment action in question. Rather, the provision is intended
to apply to the illegal use of drugs that has occurred recently enough to indicate that the
individual is actively engaged in such conduct (56 FR 35745-46, July 26, 1991). It is clear that
an individual who has a positive result on a DOT-mandated drug test is currently engaging in the
illegal use of drugs. Therefore, under Title I, an employer may discharge or deny employment to
an individual who has a positive result on a DOT-mandated drug test.
This provision, that an individual who is currently engaging in the illegal use of drugs is not a
“qualified individual with a disability” does not apply, of course, if the individual is erroneously
regarded as having engaged in the illegal use of drugs. In addition, if an individual, even a
former user of illegal drugs, is not currently engaging in the illegal use of drugs and (1) has
successfully completed a supervised rehabilitation program or otherwise has been successfully
rehabilitated, or (2) is participating in a supervised rehabilitation program, the individual can
continue to be regarded as a “qualified individual with a disability,” if the individual is otherwise
entitled to this status (§104(b)). An employer may seek reasonable assurance that an individual
is not currently engaging in the illegal use of drugs (including requiring a drug test) or is in or
has completed rehabilitation. Some employers (EEOC uses the example of a law enforcement
agency) may also be able to impose a job qualification standard that would exclude someone
with a history of drug abuse if it can show that the standard is job-related and consistent with
business necessity (56 FR 35746, July 26, 1991).
Appendix C. ADA Discussion C-2 August 2002