TITLE 42 - THE PUBLIC HEALTH
AND WELFARE
CHAPTER 126 - EQUAL OPPORTUNITY FOR INDIVIDUALS WITH
DISABILITIES
SUBCHAPTER I - EMPLOYMENT
42 U.S.C. Section 12114.
Illegal use of drugs and alcohol
(a) Qualified
individual with a disability
For purposes of this subchapter, the term "qualified individual
with a disability" shall not include any employee
or applicant who
is currently engaging in the illegal use of drugs, when the
covered
entity acts on the basis of such use.
(b) Rules of construction
Nothing in subsection (a) of this section shall be
construed to
exclude as a qualified individual with a
disability an individual
who -
(1) 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;
(2) is participating in a supervised
rehabilitation program and
is no longer engaging in such use; or
(3) is erroneously regarded as engaging in such use, but is not
engaging in such use;
except that it shall not be a violation of this chapter for a
covered entity to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed
to
ensure that an individual described in paragraph (1) or (2) is
no
longer engaging in the illegal use of drugs.
(c) Authority of covered entity
A covered entity -
(1) may prohibit the illegal use of drugs and the use of
alcohol at the workplace by all employees;
(2) may require that employees shall not be under the influence
of alcohol or be engaging in the illegal use of drugs at the
workplace;
(3) may require that employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of
1988 (41 U.S.C. 701 et seq.);
(4) 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; and
(5) may, with respect to Federal regulations regarding alcohol
and the illegal use of drugs, require that -
(A) employees comply with the standards
established in such
regulations of the Department of Defense, if the employees of
the covered entity are employed in an industry subject to such
regulations, including complying with regulations (if any) that
apply to employment in sensitive positions in such an industry,
in the case of employees of the covered entity who are employed
in such positions (as defined in the regulations of the
Department of Defense);
(B) employees comply with the standards established in such
regulations of the Nuclear Regulatory Commission, if the
employees of the covered entity are employed in an industry
subject to such regulations, including complying with
regulations (if any) that apply to employment in sensitive
positions in such an industry, in the case of employees of the
covered entity who are employed in such positions (as defined
in the regulations of the Nuclear Regulatory Commission); and
(C) employees comply with the standards established in such
regulations of the Department of Transportation, if the
employees of the covered entity are employed in a
transportation industry subject to such regulations, including
complying with such regulations (if any) that apply to
employment in sensitive positions in such an industry, in the
case of employees of the covered entity who are employed in
such positions (as defined in the regulations of the Department
of Transportation).
(d) Drug testing
(1) In general
For purposes of this subchapter, a test to
determine the
illegal use of drugs shall not be considered a
medical
examination.
(2) Construction
Nothing in this subchapter shall be construed to encourage,
prohibit, or authorize the conducting of drug testing for the
illegal use of drugs by job applicants or employees or making
employment decisions based on such test results.
(e) Transportation employees
Nothing in this subchapter shall be construed to encourage,
prohibit, restrict, or authorize the otherwise lawful exercise
by
entities subject to the jurisdiction of the Department of
Transportation of authority to -
(1) test employees of such entities in, and applicants for,
positions involving safety-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) of
this section.
-SOURCE-
(Pub. L. 101-336, title I, Sec. 104, July 26, 1990, 104 Stat.
334.)
