Many employers implement drug-free workplace policies. Often they invoke the federal Drug-Free Workplace Act in doing so. But only a subset of U.S. employers is subject to that law. Here we’ll examine what this law actually requires and consider what it doesn’t directly address.

Covered Employers

The Drug-Free Workplace Act of 1988 only applies to federal grant recipients and federal contractors with a contract for more than $100,000. To clarify, it covers any organization with an active federal grant of any size. The law only covers contractors without grants if they have at least one single contract worth more than $100,000.

Drug-Free Workplace Requirements

The Drug-Free Workplace Act does not require as much as many probably assume it does.

Generally, it requires that covered employers:

• adopt a drug-free workplace policy; and
• establish a drug-free awareness program.

Elements of a Drug-Free Workplace Policy

Under this law, an organization’s policy must include a statement that the employer prohibits the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace. It must also specify the actions that will be taken against employees who violate the policy.

The policy must also inform employees engaged in the performance of the grant or contract that they must:

• abide by the above prohibitions; and
• notify the employer within 5 days after the employee is convicted of violating a criminal drug statute for conduct occurring in the workplace.

Employer Obligations

If an employee notifies a covered employer that they have been convicted of a criminal drug violation occurring in the workplace, the employer must notify the granting or contracting agency within 10 days.

The employer must also impose some sanction on the employee. This can include requiring completion of a drug-abuse assistance rehabilitation program.

In addition, the organization must establish a drug-free awareness program. The program must inform employees about:

• the dangers of drug abuse in the workplace;
• the organization’s policy of maintaining a drug-free workplace;
• available drug counseling, rehabilitation, and employee assistance programs; and
• the penalties that may be imposed on employees for drug abuse violations.

The Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health & Human Services, provides a comprehensive “Drug-Free Workplace Toolkit” here.

Penalties for Noncompliance

Covered entities that fail to comply with the Drug-Free Workplace Act could lose contracts/grants or related payments. They may also be barred from receiving new grants or contracts for up to five years.

What the Drug-Free Workplace Act Doesn’t Require

First of all, it doesn’t require anything of organizations that don’t have qualifying federal grants or contracts.

For covered employers, it most notably does not require them to terminate any employees for drug-related infractions. It only requires some sanction or penalty, which can include mandatory counseling.

The law itself also doesn’t require any employees to report drug use or even most drug-related criminal convictions. It only mandates reporting of convictions for incidents that occurred at work.

Moreover, the law doesn’t require employers to drug test applicants or employees.

Nonetheless, this law does not prohibit organizations from doing more than strictly required as part of its efforts to maintain a drug-free workplace.

Employer Self-Audit

A self-audit is not a requirement of the Drug-Free Workplace Act, but I suggest that employers use this as a reminder to check their current approach to this subject. First, each organization should know whether it is subject to this law. And, if so, it should review compliance with the law’s requirements.

For non-covered employers, do you currently have a drug-free workplace policy? If so, that’s okay, but it may not be necessary to ensure strict compliance.

Overall, every employer has leeway regarding their policies regarding drug use by employees. Most employers can, for example, drug test employees; but few (primarily those in the transportation industry) must do so. However, there are various legal nuances to these issues. Accordingly, employers should consult with an experienced employment attorney before changing their drug/alcohol policies or implementing them in the first place.

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