EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Drug and Alcohol Testing

Dear :

This is in response to the Department of Transportation's (DOT) recent request for comments on one aspect of its final rule on drug and alcohol testing published in December 2000, at 49 C.F.R. Part 40. The DOT sought comments on section 40.25 at the request of maritime industry associations. Section 40.25 requires employers to make inquiries about the drug and alcohol testing history of applicants or employees before they perform safety-sensitive functions for the first time.

The United States Equal Employment Opportunity Commission (EEOC) enforces the federal laws that prohibit employment discrimination on the basis of an individual's disability, as well as on the bases of race, color, religion, sex, national origin, and age. Statutes enforced by the EEOC include Title I of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., which prohibits employment discrimination against qualified individuals with disabilities. For purposes of this matter, the ADA limits medical examinations and disability-related inquiries of applicants and employees. Alcohol testing is covered by these ADA provisions, although drug testing is specifically exempted. See 42 U.S.C. § 12114; 29 C.F.R. § 1630.16(c). Furthermore, the ADA gives employers a defense to ADA liability when actions are mandated or necessitated by another federal law or regulation. See 29 C.F.R. § 1630.15(e). ⁽¹⁾

We believe that the DOT should not alter the current wording of paragraph 40.25 in response to public comments. Paragraph 40.25 applies when a new hire or employee seeks to perform safety-sensitive functions for the first time. The provision states that the employer must, after obtaining an individual's written consent, request alcohol and drug testing information from former DOT-regulated employers for whom the individual performed safety-sensitive functions. Specifically, the operative language provides that, ". . . as an employer you must, after obtaining an employee's written consent, request the information about the employee listed in paragraph (b) of this section." Thus, paragraph 40.25 creates a clear ADA defense based on a mandatory requirement for DOT-covered employers. This clear delineation of legal duties is important for employers and employees alike.

Paragraph 40.25 also appropriately cautions the employer to maintain confidential records of any information obtained under this provision. Under the ADA, an employer must keep any medical information on applicants or employees confidential. See 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.14.

If you have any further questions or would like to discuss this matter, please feel free to call me or Mary Kay Mauren, Senior Attorney Advisor, at 202-663-4689.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel
Coordination Division

1. As an alternative to this defense, the ADA also expressly protects transportation employers complying with DOT drug/alcohol safety requirements. See 42 U.S.C. § 12114(c)(5)(C), (e); 29 C.F.R § 1630.16(c).

This page was last modified on April 27, 2007.