Employers may conduct drug and alcohol tests to support a safe and productive workplace and prevent substance abuse from having a negative impact. Because a test for alcohol is considered a medical exam under the Americans with Disabilities Act (ADA), while a drug test is not, and because state laws impact drug testing, there are different considerations that need to be taken into account for each type of test.

For information on when and how to conduct a drug test, see the Drug Testing section.

When testing for alcohol, the approach that is taken will depend on why a test is being given.

Pre-employment alcohol tests

When conducting an alcohol test before a job candidate is hired, employers need to be careful with the timing of the tests. Tests for illegal drugs are not considered medical exams, but tests for alcohol are. Under the ADA, a test for alcohol can only be given after an offer of employment has been made.

In addition, if an alcohol test is required, it should be conducted for all candidates for a position. Treating all job candidates the same helps avoid a discrimination claim.

Random alcohol tests

After an employee begins work, random alcohol tests should generally not be given to employees unless testing is required under a state or federal law, such as Department of Transportation (DOT) regulations for covered drivers. There are also narrow exceptions that allow random tests for some return-to-duty situations.

Random testing is generally not allowed because an alcohol test is considered a medical exam under the ADA, and the ADA restricts when a medical exam can be conducted.

After an employee begins work, an employer can require a medical exam only if:

• There is a reasonable belief, based on objective evidence, that a particular employee is unable to perform the essential functions of the job because of a medical condition; or
• The employee will pose a direct threat to safety because of a medical condition.

A random alcohol test does not target a specific employee or incident, so it would not be based on objective evidence or a direct threat.

There are a few narrow job-related exceptions where random testing is allowed:

• It may be allowed after an employee has undergone alcohol rehabilitation and the employer reasonably believes the employee would pose a direct threat in the absence of such testing. For example, random testing may be needed if the employee is a bus driver or surgeon, but may not be needed if the person is an accountant.
• Random testing is allowed in the case of “last chance agreements.” This is a contract between an employee and an employer following an incident that would normally result in discipline. The agreement gives the worker an opportunity to continue employment after committing a serious violation of company policy.
• The Equal Employment Opportunity Commission (EEOC) allows periodic medical examinations to be given to individuals with jobs that impact public safety. These include police officers, firefighters, and private security officers.
• A court has ruled that random tests can be given if employees wear safety gear that prohibits an employer from assessing visible signs of alcohol use. (This is only one court’s opinion, however, so an employer should be very careful if it is testing employees randomly because of the protective gear they are required to wear.)

A blanket policy to do random testing would likely violate the ADA. However, an employer may assess the situation and determine whether or not it falls under one of the exceptions that are noted. If an employer is conducting random alcohol tests on an individual employee, the employer should have a qualifying reason for doing so.

If the employer has a concern about safety, and an employee is exhibiting signs of alcohol use, a reasonable suspicion test could be given. This is allowed under the ADA because it meets the law's reasonable belief and direct threat requirements. The reasonable belief that an employee will pose a direct threat due to alcohol use needs to be based on objective evidence. This requires an individualized assessment of the employee and the employee's position, and cannot be based on general assumptions.

Reasonable suspicion alcohol tests

The ADA does not restrict reasonable suspicion tests for alcohol. When an employee is showing signs of intoxication from alcohol, a test can be conducted.

An employer can follow the same procedures — observe, confirm, confront, test, and document— for reasonable suspicion alcohol tests that are used when a reasonable suspicion drug test is conducted:

Step 1: Observe

A supervisor or manager observes the unusual or curious behavior.

Step 2: Confirm

The supervisor confirms that the physical, behavioral, speech, and/or performance indicators being observed are consistent with the signs and symptoms of alcohol misuse. If possible, these observations are also confirmed by a second supervisor.

Step 3: Confront

The supervisor approaches the employee and notifies the employee of the suspicion. The supervisor describes exactly what was observed, sticks to the facts, shows concern, and explains the need for an alcohol test.

Step 4: Test

The supervisor orders the appropriate test. The employee is taken to a testing facility if in-house tests are not conducted. It is a best practice to have the supervisor or another company official accompany the driver to the facility.

Step 5: Document

The supervisor documents the observations leading to the alcohol test. The documentation must be objective and should be detailed. "I" statements should be avoided. Instead, the supervisor documents what has been observed. For example: “The employee had difficulty concentrating, seemed uncoordinated, and dropped a toolbox on July 12. The employee arrived late for work on that date without an explanation. The employee’s breath smelled of alcohol.”

Post-accident alcohol tests

A workplace accident or incident could lead a supervisor to suspect that a worker is under the influence of alcohol. The worker may have been driving erratically or working in an unsafe manner directly before the incident, leading to the suspicion that alcohol use contributed to the cause. Perhaps the severity of the incident leads to the suspicion that the driver was impaired.

An alcohol test can be conducted after a workplace accident or incident if alcohol use is suspected. The ADA does not restrict a test for alcohol in this situation because there is a reasonable belief that the employee poses a direct threat to safety.

Return-to-duty tests

While a random alcohol test should not generally be given to employees who do not fall under DOT regulations, there is a narrow exception to the random alcohol testing ban under the ADA for employees returning to a safety-sensitive position after an individual has attended a rehabilitation program for alcohol addiction.

For example, a bus driver who was with a company for only a few months before successfully completing an alcohol rehabilitation program may be tested periodically for alcohol after returning to work.

However, the ability to conduct a random test under this exception depends on the specific situation and the employee’s job duties. An employer should consider:

• The safety risks associated with the employee’s job,
• The consequences of the employee’s inability or impaired ability to perform the job functions,
• How long the individual has been an employee,
• When rehabilitation was completed, and
• Whether the employee has previously relapsed.

If an employee’s situation does meet these considerations, the random alcohol test should be designed to address the particular safety concerns of the employee’s job. The test should not be used to harass, intimidate, or retaliate against an employee.

After an employee repeatedly tests negative, the ransom tests may no longer fit the ADA requirement of being job-related and consistent with business necessity. It would be best to discontinue random alcohol testing after a series of negative tests, as the employer may no longer have a reasonable belief that the employee will pose a direct threat.