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**Sharing  the Dream: Is the ADA Accommodating All?**

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**Chapter 4**

**Substance Abuseunder the ADA**

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It has been reported that 10 percent to 25 percent of theAmerican population is �sometimes on the job under the influence of alcohol orsome illicit drug.�[1] The social and economiccosts of substance abuse in America are staggering. In a report issued in 1998by the National Institute on Alcohol Abuse and Alcoholism and the NationalInstitute on Drug Abuse, it is estimated that the cost of alcohol and drug abusefor 1995 was $276.4 billion, of which $166.5 billion was for alcohol abuse and$109.8 billion was for drug abuse.[2]

Title I of the Americans with Disabilities Act[3]specifically permits employers to ensure that the workplace is free from theillegal use of drugs and the use of alcohol, and to comply with other federallaws and regulations regarding drug and alcohol use. At the same time, the ADAprovides limited protection from discrimination for recovering drug abusers andfor alcoholics.[4]

The following is an overview of the current legalobligations for employers and employees:

-  An individual who is currently engaging in the illegal useof drugs is not an �individual with a disability� when the employer acts onthe basis of such use.An employer may not discriminate against a person who has a*history* of drug addiction but who isnot currently using drugs and who has been rehabilitated.An employer may prohibit the illegal use of drugs and theuse of alcohol at the workplace.It is not a violation of the ADA for an employer to givetests for the illegal use of drugs.An employer may discharge or deny employment to persons whocurrently engage in the illegal use of drugs.Employees who use drugs or alcohol may be required to meetthe same standards of performance and conduct that are set for other employees.Employees may be required to follow the Drug-Free WorkplaceAct of 1988 and rules set by federal agencies pertaining to drug and alcohol usein the workplace.[5]
**WHENARE DRUG USERS COVERED UNDER THE ADA?**

The ADA provides that any employee or job applicant who is�currently engaging� in the illegal use of drugs is not a �qualifiedindividual with a disability.�[6] Therefore, an employee whoillegally uses drugs�whether the employee is a casual user or an addict�isnot protected by the ADA if the employer acts on the basis of the illegal druguse.[7] As a result, an employerdoes not violate the ADA by uniformly enforcing its rules prohibiting employeesfrom illegally using drugs.[8]However, �qualified individuals� under the ADA include those individuals:
-  who have been successfully rehabilitated and who are nolonger engaged in the illegal use of drugs;[9]who are currently participating in a rehabilitation programand are no longer engaging in the illegal use of drugs;[10]andwho are regarded, erroneously, as illegally using drugs.[11]
A former drug *addict*may be protected under the ADA because the addiction may be considered asubstantially limiting impairment.[12]However, according to the EEOC Technical Assistance Manual on the ADA, a former *casual*drug user is not protected:

[A] person who casually used drugs illegally in the past,but did not become addicted is not an individual with a disability based on thepast drug use. In order for a person to be �substantially limited� becauseof drug use, s/he must be addicted to the drug.[13]

**What Is a�Current� Drug User?**

The definition of �current� is critical because the ADAonly excludes someone from protection when that person is a �current� userof illegal drugs. In her testimony before the Commission, Nancy Delogu, counselto the Institute for a Drug-Free Workplace,[14]stated, �There is insufficient law on the issue right now and it is causinggreat difficulty for employers to determine exactly when they may takediscipline against an employee.�[15]

Mark Rothstein, professor of law and director of theHealth, Law and Policy Institute at the University of Houston, concurred withMs. Delogu, testifying before the Commission that the EEOC should �engage insome sort of interpretive statement� and, after consulting with experts in therehabilitation community,

could offer guidance that would be very helpful toemployers in this area such as stating a particular length of time that anindividual must be stable and making progress or require certification of anindividual who had a substance abuse problem from some professional that theywere making good progress before they would be covered [by the ADA], because . .. employers are having a difficult time making a determination. The courts havebeen reluctant to set out specific time periods, and this is an area that hascaused a great deal of concern.[16]

The EEOC has defined �current� to mean that the illegaldrug use occurred �recently enough� to justify the employer�s reasonablebelief that drug use is an ongoing problem.[17]The EEOC Technical Assistance Manual on the ADA provides the following guidance:
-  If an individual tests positive on a drug test, he or shewill be considered a current drug user, so long as the test is accurate.Current drug use is the illegal use of drugs that hasoccurred recently enough to justify an employer�s reasonable belief thatinvolvement with drugs is an ongoing problem.�Current� is not limited to the day of use, or recentweeks or days, but is determined on a case-by-case basis.[18]
The Circuit Courts of Appeals have held that a person canstill be considered a current user even if he or she has not used drugs for anumber of weeks or even months. For example, in *Zenor**v.**ElPaso Healthcare Systems, Ltd*.,[19]the court held that the employee, a pharmacist, was a �current� user becausehe had used cocaine five weeks prior to his notification that he was going to bedischarged. In *Salley**v.**Circuit City Stores, Inc*.,[20]the court noted that it knew of �no case in which a three-week period ofabstinence has been considered long enough to take an employee out of the statusof �current� user.�[21]

In *Shafer**v.**Preston Memorial Hospital Corp*.,[22]the court considered the ADA claim of a nurse who was stealing medication towhich she had become addicted.[23]While the hospital investigated the matter, the nurse was put in drugrehabilitation.[24] The day after shefinished her inpatient drug rehabilitation, she was notified that she had beenterminated for �gross misconduct involving the diversion of controlledsubstances.�[25]

In concluding that the plaintiff was still a �current�illegal drug user, the court noted that �the ordinary or natural meaning ofthe phrase �currently using drugs� does not require that a drug user have aheroin syringe in his arm or a marijuana bong to his mouth at the exact momentcontemplated.�[26]Rather, according to the court, someone is a �current� user if he or sheillegally used drugs �in a periodic fashion during the weeks and months priorto discharge.�[27]

**Can Enrolling in aRehabilitation Program Provide ADA Protection?**

A question sometimes arises as to whether a drug addictedemployee who breaks the company rules can, before being disciplined, enroll in asupervised drug rehabilitation program, and then claim ADA protection as aformer drug addict who no longer illegally uses drugs. In her testimony beforethe Commission, Nancy Delogu stated:

It is causing great difficulty for employers to determineexactly when they may take discipline against an employee who may have had adisciplinary problem, tests positive or admits to a substance abuse problem,comes into rehabilitation for maybe 30 days. The employer waits until theemployee returns to the work force and then says, �All right, now we�regoing to talk about the problems we have,� and the employee says, �Hey,I�m disabled, I�m now covered by the ADA. . . .� This provision actuallyserves as something of a disincentive to employers to offer rehabilitation andother services to employees before addressing any substantive performanceproblems.[28]

The EEOC Technical Assistance Manual on the ADA states that such claimsmade by an applicant or employee will not be successful:

An applicant or employee who tests positive for an illegaldrug cannot immediately enter a drug rehabilitation program and seek to avoidthe possibility of discipline or termination by claiming s/he is now inrehabilitation and is no longer using drugs illegally. A person who testspositive for illegal use of drugs is not entitled to the protection that may beavailable to former users who have been or are in rehabilitation.[29]

Notwithstanding the EEOC�s clear language, employeesstill attempt to use the argument in courts. When they do, the employer willargue�and usually with success�that the employee is a �current� userdespite his or her recent admission into a drug rehabilitation program.[30]

For example, in *Collings**v.**Longview Fibre Co*.,[31]the employer fired several employees for using illegal drugs at the facility.[32]In their ADA lawsuit, seven of the eight plaintiffs said they had eithercompleted drug rehabilitation programs or were in the process of rehabilitationat the time they were fired, so they were not �current� users.[33]Some of the plaintiffs even took drug tests shortly after they were dischargedto prove they were not currently using illegal drugs.[34]

The court said �current� use was not limited to the useof drugs �on the day of, or within a matter of days or weeks before� theemployment action in question.[35]Rather, said the court, the provision is intended to apply �to the illegal useof drugs that has occurred recently enough to indicate that the individual isactively engaged in such conduct.�[36]The plaintiffs were held to be �current� users and, despite the fact thatthey had entered or had completed a drug rehabilitation program, were notprotected by the ADA.[37]

**Reasonable Accommodation for DrugAddicts**

The duty to provide reasonable accommodations to qualifiedindividuals with disabilities is considered one of the most important statutoryrequirements of the ADA.[38]If a recovering drug addict is not currently illegally using drugs, then he orshe may be entitled to reasonable accommodation. This would generally involve amodified work schedule so the employee could attend Narcotics Anonymous meetingsor a leave of absence so the employee could seek treatment.[39]

**WHENARE ALCOHOL USERS COVERED UNDER THE ADA?**

Individuals who abuse alcohol may be considered disabledunder the ADA if the person is an alcoholic or a recovering alcoholic.[40]Courts have usually held that alcoholism is a covered disability. For example,in *Williams**v.**Widnall*,[41]the court flatly stated, without discussion, that alcoholism �is a covereddisability.�[42]

Some courts have questioned whether alcoholism should automatically bedesignated as a covered disability. For example, in *Burch**v.**Coca-Cola,*[43]the court held that alcoholism is not a perse disability and found that the plaintiff�s alcoholism was not acovered disability because it did not substantially limit any of his major lifeactivities.[44] Similarly, in *Wallin**v.**Minnesota Department ofCorrections,*[45]the court suggested that it would analyze alcoholism on a case-by-case basis andnoted that the plaintiff had not presented evidence �that his alcoholismimpaired a major life activity.�[46]Moreover, both *Burch* and *Wallin*are consistent with the United States Supreme Court�s ruling in *Sutton**v.**United Airlines, Inc*.,[47]which stated clearly that an �individualized inquiry� will be conducted todetermine whether an impairment �substantially limits� a major lifeactivity. As the Court explained in *Sutton*:

A �disability� exists only where an impairment�substantially limits� a major life activity, not where it �might,��could,� or �would� be substantially limiting if corrective measureswere not taken. Second, because subsection (A) [of 42 U.S.C. � 12102(2)]requires that disabilities be evaluated �with respect to an individual� andbe determined based on whether an impairment substantially limits theindividual�s �major life activities,� the question whether a person has adisability under the ADA is an individualized inquiry.[48]

Even though courts may determine that alcoholism is acovered disability, the law makes it clear that employers can enforce rulesconcerning alcohol in the workplace. The ADA provides that employers may:
-  prohibit the use of alcohol in the workplace;[49]require that employees not be under the influence ofalcohol in the workplace;[50]andhold an employee with alcoholism to the same employmentstandards to which the employer holds other employees even if the unsatisfactoryperformance or behavior is related to the alcoholism.[51]
The EEOC Technical Assistance Manual giving furtherguidance on the ADA provides that employers are free to �discipline, dischargeor deny employment to an alcoholic whose use of alcohol adversely affects jobperformance or conduct to the extent that s/he is not �qualified.� �[52]The manual elaborates with the following example:

If an individual who has alcoholism often is late to work,or is unable to perform the responsibilities of his/her job, an employer cantake disciplinary action on the basis of the poor job performance and conduct.However, an employer may not discipline an alcoholic employee more severely thanit does other employees for the same performance or conduct.[53]

For example, if an alcoholic employee and a non-alcoholicemployee are caught having a beer on the loading dock, the employer cannot firethe alcoholic employee while giving the other employee only a written warning.[54]In *Flynn**v.**Raytheon Co*.,[55]the court dealt with this precise issue. It held that even though an employercan enforce its rules against intoxication on the job, it could not selectivelyenforce its rules in a way that treats alcoholics more harshly.[56]In short, whatever policies the employer enacts must be uniformly applied.[57]

**ReasonableAccommodation for Alcoholics**

The duty to provide reasonable accommodations to qualifiedindividuals with disabilities is considered one of the most important statutoryrequirements of the ADA.[58]Reasonable accommodation for an alcoholic would generally involve a modifiedwork schedule[59] so the employee couldattend Alcoholics Anonymous meetings, or a leave of absence[60]so the employee could seek treatment. In *Schmidt**v.**Safeway, Inc*.,[61]for example, the court held that the employer must provide a leave of absence sothe employee could obtain medical treatment for alcoholism.[62]

The ADA does not require an employer to provide an alcoholrehabilitation program or to offer rehabilitation in lieu of disciplining anemployee for alcohol-related misconduct or performance problems. In Senateproceedings, Senator Daniel Coats (R-IN) asked Senator Tom Harkin (D-IA), theADA�s chief sponsor, �Is the employer under a legal obligation under the actto provide rehabilitation for an employee who is using . . . alcohol?� Inresponse, Senator Harkin stated, �No, there is no such legal obligation.�[63]The Senate report echoes Senator Harkin�s response that reasonableaccommodation �does not affirmatively require that a covered entity mustprovide a rehabilitation program or an opportunity for rehabilitation . . . forany current employee who is [an] alcoholic against whom employment-relatedactions are taken� for performance or conduct reasons.[64]

The EEOC has held that �federal employers are no longerrequired to provide the reasonable accommodation of �firm choice� underSection 501 of the Rehabilitation Act.�[65]�Firm choice� generally entails a warning to employees with alcohol-relatedemployment problems that they will be disciplined if they do not receive alcoholtreatment. The EEOC�s rationale is that the Rehabilitation Act was amended in1992 to apply ADA standards, and that the ADA does not require an employer toexcuse misconduct for poor performance, even if it is related to alcoholism. InEEOC�s �Enforcement Guidance on Reasonable Accommodation and UndueHardship� statement, the EEOC reiterated that an employer �has no obligationto provide �firm choice� or a �last chance agreement� as a reasonableaccommodation.�[66]

Moreover, an employer is generally not required to provideleave to an alcoholic employee if the treatment would appear to be futile. Forexample, in *Schmidt**v.**Safeway, Inc.*,[67] the court said anemployer would not be required �to provide repeated leaves of absence (orperhaps even a single leave of absence) for an alcoholic employee with a poorprognosis for recovery.�[68]And in *Fuller**v.**Frank*,[69]the court held that the employer was not required to give an alcoholic employeeanother leave of absence when alcohol treatment had repeatedly failed in thepast.[70]

Finally, an employer generally has no duty to provide anaccommodation to an employee who has not asked for an accommodation and whodenies having a disability. In *Larson**v.**Koch Refining Co*.,[71]the court dealt with this precise issue and held that the employer had noobligation to provide accommodation to an employee with alcoholism when theemployee did not ask for an accommodation, and in fact expressly denied havingan alcohol problem.[72]

**Blaming Misconducton Alcoholism**

Courts routinely hold that employees cannot blamemisconduct on alcoholism. For example, in *Renaud**v.**Wyoming Department of Family Services*,[73]the court noted that even if alcoholism is assumed to be a disability, the ADAdistinguishes between alcoholism and alcoholism-related misconduct.[74]The court determined that the employer could lawfully terminate the employee (aschool superintendent) for coming to work drunk, even though he claimed theconduct resulted from his alcoholism.[75]

In *Labrucherie**v.**Regents of the University of California*,[76]the court stated it was not discriminatory to fire an employee because he wasincarcerated after his third arrest for drunk driving.[77]The court noted that �a termination based on*misconduct stemming from a disability*, rather than the disability itself, isvalid.�[78]

Likewise, in *Maddox**v.**University of Tennessee*,[79]the university fired an assistant football coach after his third arrest fordrunk driving.[80] During the arrest, theassistant coach was combative and would not take a Breathalyzer test.[81]The employee claimed that he was discriminated against based on his alcoholismbecause his drunk driving was a result of the alcoholism.[82]The court agreed with the university that the misconduct could be separated fromthe alcoholism and that the assistant coach was properly terminated due to themisconduct.[83]

It is clear that an employer does not, as a reasonableaccommodation, have to forgive misconduct because the misconduct resulted fromalcoholism. In *Flynn**v.**Raytheon Co*.,[84] the lower court notedthat an employee who broke the company�s policy prohibiting being under theinfluence of alcohol in the workplace cannot �belatedly avail himself of thereasonable accommodation provisions� of the ADA to escape discipline for hismisconduct.[85] The First Circuit alsonoted that the ADA �does not require an employer to rehire a former employeewho was lawfully discharged for disability-related failures to meet itslegitimate job requirements.�[86]

**DIRECTTHREAT POSED BY SUBSTANCE ABUSE**

The defense of �direct threat� is one that is raisedfrequently by employers in dealing with issues of substance abuse. The ADAdefines direct threat as �a significant risk to the health or safety of othersthat cannot be eliminated by reasonable accommodation.�[87]The ADA permits employers to require, as a job qualification, that an individualnot �pose a direct threat to the health or safety of other individuals in theworkplace.�[88]Moreover, an employer may institute such a requirement even if an employer�sreliance on such a qualification might �screen out or tend to screen out orotherwise deny a job or benefit to an individual with a disability.�[89]

The determination that an individual with a disabilityposes a direct threat shall be based on an individualized assessment of theindividual�s present ability to safely perform the essential functions of thejob.[90]In determining whether an individual would pose a direct threat, the factors tobe considered include:
-  the duration of the risk;the nature and severity of the potential harm;the likelihood that the potential harm will occur; andthe imminence of the potential harm.[91]
Evidence used in making the determination may includeinformation from the individual, including the individual�s experience inprevious similar situations, and the opinions of doctors, rehabilitationcounselors, or physical therapists who have expertise in the specific disabilityor who have direct knowledge of the individual.[92]

Moreover, the EEOC has emphasized, in its InterpretiveGuidance on Title I of the ADA, that an employer may not deny employment to anindividual with a disability �merely because of a slightly increased risk. Therisk can only be considered when it poses a significant risk, i.e., highprobability of substantial harm; a speculative or remote risk isinsufficient.�[93]

**EEOC v. Exxon Corporation**

In *EEOC**v.**Exxon Corporation*,[94]the courts were forced to analyze the ADA�s �direct threat�[95]defense and how it interacts with the �business necessity�[96]defense. With respect to substance abuse and the ADA, courts have generallyrecognized an employer�s prerogative to formulate and rely upon safety-basedjob qualifications, even though they may screen out individuals withdisabilities. 

In *Exxon*, theEEOC brought suit against Exxon on behalf of several employees,[97]alleging that the company�s blanket policy of prohibiting individuals who haveever been treated for drug or alcohol abuse from working in safety-sensitive�designated positions�[98](approximately 10 percent of Exxon�s positions) violated the ADA.[99]The EEOC argued that the company�s policy was invalid on its face because itdid not provide, as mandated by ADA regulations, for an �individualizedassessment� of whether former drug abusers were qualified to work in any ofthe designated safety-sensitive positions.[100]

The company countered by claiming that the ADA does notrequire an individualized assessment of an employee�s risk of relapse wheresuch an assessment would be impractical or impossible.[101]The company argued that the risk of relapse for rehabilitated substance abusersis too great to permit them to work in the designated safety-sensitivepositions, and that the inability to predict a relapse makes individualizedassessments futile.[102]

The U.S. District Court found that the ADA permits anexception to the individualized assessment ordinarily required under the law.[103]The court relied on the ADA�s emphasis on protecting employers from the risksposed by recently rehabilitated employees, and on other employmentdiscrimination statutes that permit blanket exclusions where safety is an issueand the employer has reason to believe that all of the disqualified employeeswould be unable to perform safely.[104]

In its appeal, the EEOC relied on its Interpretive Guidanceto argue that employers must meet the direct threat defense:

With regard to safety sensitive requirements that screenout or tend to screen out an individual with a disability or a class ofindividuals with disabilities, an employer must demonstrate that therequirement, as applied to the individual, satisfies the �direct threat�standard . . . in order to show that the requirement is job-related andconsistent with a business necessity.[105]

The Fifth Circuit Court of Appeals examined the text of theADA and held while �direct threat� focuses on the individual employee andexamines the specific risk posed by the employee�s disability, �businessnecessity� addresses whether the qualification standard can be justified as anacross-the-board requirement.[106]The court determined that while Exxon�s �blanket� across-the-board policymight exclude individuals with disabilities without an individualized analysisas to whether they could perform the essential functions of the position, thisexclusion was appropriate if the employer could demonstrate that it is justifiedby business necessity.[107]

The *Exxon* casegenerated significant debate during the Commission�s ADA hearing. Nancy Delogu,counsel to the Institute for a Drug-Free Workplace, said it was important toresolve the issue. She testified:

Alcoholism and substance abuse are chronic conditions forwhich the risk of relapse cannot be well . . . predicted. And for certain very,very highly safety-sensitive positions, those which have no . . . directsupervision and for which a lapse in judgment could lead to a catastrophicerror, employers wish to be able to exclude those employees from thosepositions. Whether they�re required to transfer them to another position wouldcertainly be something open to a policy debate, but currently this is quite aconcern.[108]

Kenneth Collins, formerly the manager of the EmployeeAssistance Program at Chevron Corporation and currently vice president for ValueOptions, the nation�s second largest provider of behavioral health careservices, testified that the Chevron Corporation conducted a study on accidentrates of its workers.[109]The study concluded that workers who had completed Employee AssistanceProgram-monitored substance abuse rehabilitation had no more on-the-job oroff-the-job accidents than did the �regular� Chevron population.[110]Mr. Collins testified:

It certainly is my position based on my experience and theresearch done within Chevron and at other similar oil companies who have tightlystructured employee assistance programs that, in fact, you can returnindividuals to highly safety-sensitive positions and not expose the company toincreased risks of accidents or errors in judgment. But that is premised onhaving a rigorous follow-up program [which involves weekly follow-up testing].[111]

The *Exxon* casesuggests that an employer should carefully consider the context in which medicalguidelines will be used; i.e., will medical guidelines be used as a basis forformulating job qualifications for safety-based reasons, or will they be used toassess, during a medical examination, whether an individual poses a directthreat. The ruling in *Exxon* suggeststhat an employer�s reliance on medical guidelines may be more defensible whenthey are used to formulate a broad-based qualification than to assess anindividual case.

Some experts suggest that partly because of the publicitysurrounding notorious cases like *Exxon*,companies can become too quick to designate a position as �safetysensitive.� Mark Rothstein, professor of law and director of the Health, Lawand Policy Institute at the University of Houston, testified before theCommission that some employers have indeed been overly inclusive in the processof determining which positions are safety sensitive:

I think some employers have an overly broad view of what asafety-sensitive position is and have . . . declared many jobs permanentlyunavailable to individuals who have ever had any sort of substance abuseproblem, no matter how many years in the past. And I think that these policiesare not substantiated by the scientific evidence and I think are directlycounter to the purposes of the ADA.[112]

Mr. Rothstein testified that while he thought a blanketpolicy was �understandable� in the *Exxon*case, he thought it �ill-advised� to adopt a �basically irrebuttablepresumption� that anyone who has ever had a substance abuse problem should bebarred for his or her lifetime from engaging in an activity that the employerdeems to be safety sensitive.[113]To illustrate his point, Mr. Rothstein referred to the case of *KnoxCounty Education Association**v. KnoxCounty Board of Education*.[114]

In *Knox County*,the Sixth Circuit upheld the drug testing of school personnel, includingprincipals, teachers, aides, secretaries, and bus drivers, on the ground thatbecause these individuals play a unique role in the lives of children, all thepositions were deemed to be safety sensitive, including the people who worked inthe office.[115]Mr. Rothstein testified:

It seems to me that if you broaden the concept of safetysensitive as far as that court and applied it in the workplace, now you�rebasically saying that anyone who ever had a minor substance abuse problem incollege 25 or 30 years ago, they�re now barred from who knows how many jobs.That strikes me as not being based on any good facts or any good policy.[116]

Ellen Weber, director of the national office of the LegalAction Center, a law and policy office that specializes in alcohol, drug, andAIDS issues, concurred with Mr. Rothstein. She testified before the Commission,�We . . . agree to a great extent with . . . what Mr. Rothstein has said withregard to the issues of employers overly expanding the list of safety-sensitivejobs to which people are rejected from blanketly.�[117]

**PRE-EMPLOYMENTINQUIRIES ABOUT DRUG AND ALCOHOL USE**

An employer may make certain pre-employment, pre-offerinquiries regarding use of alcohol or the illegal use of drugs.[118]An employer may ask whether an applicant drinks alcohol or whether he or she iscurrently using drugs illegally.[119]However, an employer may not ask whether an applicant is a drug abuser oralcoholic, or inquire whether he or she has ever been in a drug or alcoholrehabilitation program.[120]Indeed, the EEOC has provided extensive guidance of what can and cannot be askedthrough its Enforcement Guidance titled �Pre-employment Disability-RelatedQuestions and Medical Examinations.�[121]

After a conditional offer of employment, an employer mayask any question concerning past or present drug or alcohol use as long as itdoes so for all entering employees in the same job category.[122]The employer may not, however, use such information to exclude an individualwith a disability, on the basis of a disability, unless it can show that thereason for exclusion is job related and consistent with business necessity, andthat legitimate job criteria cannot be met with a reasonable accommodation.[123]

**DRUGTESTING**

An employer may conduct tests to detect illegal use ofdrugs.[124]The ADA does not prohibit, require, or encourage drug tests. Drug tests are notconsidered medical examinations, and an *applicant*can be required to take a drug test before a conditional offer of employment hasbeen made.[125]An *employee* also can be required totake a drug test, whether or not such a test is job related and necessary forthe business.[126]

An employer may refuse to hire an applicant or maydischarge or discipline an employee based upon a test result that indicates theillegal use of drugs. The employer may take these actions even if an applicantor employee claims that he or she recently stopped illegally using drugs.[127]

Tests for illegal use of drugs also may reveal the presenceof lawfully used drugs, i.e., prescription medications. If a person is excludedfrom a job because the employer erroneously �regarded� him or her to be adrug abuser, currently using drugs illegally, and a drug test revealed thepresence of a lawfully prescribed drug, the employer would be liable under theADA.[128]There was testimony at the Commission�s ADA hearing to suggest that thisproblem should be examined more closely to see if it is leading to costly andunnecessary litigation in the workplace. Nancy Delogu told the Commission:

With drug abuse in the workplace and the number ofindividuals who are subject to drug testing, anyone who ever has a positive drugtest, theoretically, can claim to be perceived as disabled by his or heremployer or would-be employer. As a result, many cases have been brought, andmany which are quite frivolous based on a positive drug test. The employer isgoing to do whatever they are going to do and then the employee says, �Wellyou saw me as disabled and I�m going to sue.� Unfortunately, that�s anissue of fact that requires usually lengthy discovery and litigation costsbefore that can be resolved.[129]

To avoid such potential liability, the employer would haveto determine whether the individual was using a legally prescribed drug. Anemployer may not ask what prescription drugs an individual is taking beforemaking a conditional job offer; however, an employer may validate a positivetest result by asking about an applicant�s lawful use of drugs or for otherpossible explanations for the positive test result. Alternatively, the EEOCTechnical Assistance Manual on the ADA suggests:

[O]ne way to avoid liability is to conduct drug tests aftermaking an offer, even though such tests may be given at anytime under the ADA.Since applicants who test positive for illegal drugs are not covered by the ADA,an employer can withdraw an offer of employment on the basis of illegal druguse.[130]

Mark Rothstein, professor of law and director of theHealth, Law and Policy Institute at the University of Houston, endorses thisEEOC recommendation. He testified at the Commission�s ADA hearing:

This is a problem that can be avoided very simply byemployers who defer drug testing until the post-offer stage, that is thepre-placement stage when there are no restrictions on inquiries regardingmedical conditions or substances that could cause cross-reactivity. The reasonthat many employers don�t want to . . . defer the testing until the post-offerstage is they think it�s cheaper to screen out workers or potential workers onthe basis of a positive drug test than it is to review their r�sum�s andapplications and references and to actually look at the individual. And that maywell be true, but I think that�s a rather unconvincing reason to me, at least,for subjecting individuals to this violation of their privacy that Congressotherwise said was impermissible.[131]

 If the results of a drug test indicate the presence of alawfully prescribed drug, such information must be kept confidential, in thesame way as any medical record. If the results reveal information about adisability in addition to information about drug use, the disability-relatedinformation is to be treated as a confidential medical record.[132]

**OTHER  LAWS AND REGULATIONS CONCERNING DRUGS AND ALCOHOL**

The ADA does not interfere with an employer�sability to comply with other federal laws and regulations concerning the use ofdrugs and alcohol, including the Drug-Free Workplace Act of 1988; regulationsapplicable to particular types of employment, such as law enforcement positions;regulations of the Department of Transportation for airline employees,interstate motor carrier drivers, and railroad engineers; and regulations forsafety-sensitive positions established by the Department of Defense and theNuclear Regulatory Commission. Employers may continue to require that theirapplicants and employees comply with such federal laws and regulations.[133]

[1]*See*    Federico E. Garcia, �The Determinants of Substance Abuse in the    Workplace,�*Social Science Journal*, vol. 33 (1996), pp. 55, 56. *See    also*National Institute on Alcohol Abuse and Alcoholism, U.S. Department    of Health and Human Services, *Sixth Special Report to the U.S. Congress    on Alcohol and Health*, no.**22 (1987).

[2] The main components of the    estimated costs of alcohol abuse include health care expenditures (12.3    percent); productivity losses due to premature death (21.2 percent);    productivity impairment due to alcohol-related illness (45.7 percent); and    property and administrative costs of alcohol-related motor vehicle crashes    (9.2 percent). The main components of the estimated costs of drug    abuse include health care expenditures (10.2 percent); lost    productivity of incarcerated perpetrators of drug-related crimes (18.3    percent); lost legitimate production due to drug-related crime careers (19.7    percent); other costs of drug-related crime, including police, legal, and    corrections services, federal drug traffic control, and property damage    (18.4 percent); and impaired productivity due to drug-related illness (14.5    percent). National Institute on Alcohol Abuse and Alcoholism (NIAAA) and the    National Institute on Drug Abuse (NIDA), *The Economic Costs of Alcohol    and Drug Abuse in the United States,* May 13, 1998.

[3] 42 U.S.C. ��    12111�12117 (1994).

[4] 42 U.S.C. ��    12111�12117.

[5] Equal Employment    Opportunity Commission, Technical Assistance Manual on the Employment    Provisions (Title I) of the Americans with Disabilities Act � 8.2, January    1992 (hereafter cited as EEOC Technical Assistance Manual on the ADA).

[6] 42 U.S.C. � 12114(a)    (1994); 29 C.F.R. � 1630.3(a) (1999). *See*, *e.g*., Shafer v.    Preston Mem�l Hosp. Corp., 107 F.3d 274 (4th Cir. 1997) (current illegal    drug user is not covered). Ellen Weber, director of the national office of    the Legal Action Center, a law and policy office that specializes in    alcohol, drug, and AIDS issues, said in her testimony before the Commission    that prior to passage of the ADA, individuals with current drug problems    were protected under the Rehabilitation Act against discrimination to the    extent they could perform their jobs. �[The] decision to eliminate    coverage,� Ms. Weber testified, �was based on nothing other than the    pure political decision that nobody wanted to appear soft on drugs. . . .�    Ellen Weber, testimony before the U.S. Commission on Civil Rights, hearing,    Washington, D.C., Nov. 12�13, 1998, transcript, p. 25 (hereafter cited as    Hearing Transcript). Ms. Weber argued that this change in the law �did    nothing more than . . . deter some individuals from getting into treatment    and driving the problem underground in an effort to hide that problem from    an employer.� Ibid., pp.    25�26.

[7] Under the ADA, �illegal    use� is broader than just the use of drugs that are commonly viewed as    illegal. It includes the use of illegal drugs that are controlled substances    (e.g., cocaine) as well as    the illegal use of prescription drugs that are controlled substances (e.g.,    Valium). For example, in Nielsen v. Moroni Feed Co., 162 F.3d 604, 611, fn.    12 (10th Cir. 1998), the court stated there �is no doubt that, under the    ADA, illegal drug use includes the illegal misuse of pain-killing drugs    which are controlled by prescription as well as illegal street drugs like    cocaine.�

[8] EEOC Technical Assistance    Manual on the ADA � 8.3. *See, e.g*., Wood v. Indianapolis Power & Light, 2000 U.S. App.    LEXIS 1769 (7th Cir. 2000), No. 99-1652 (meter reader who tested positive    for cocaine and marijuana use was not protected by the ADA).

[9] 42 U.S.C. � 12114(b)    (1994).

[10] 42 U.S.C. � 12114(b)    (1994). A �rehabilitation program� may include inpatient, outpatient, or    employee assistance programs, or recognized self-help programs such as    Narcotics Anonymous. EEOC Technical Assistance Manual on the ADA � 8.5.

[11] 42 U.S.C. � 12114(b). *See*Ackridge v. Dep�t of Human Servs., City of Philadelphia, 3 AD Cases    (BNA) 575, 576 (E.D. Pa. 1994), in which the plaintiff claimed that she was    discriminated against because she was incorrectly regarded as an alcoholic    and/or a substance abuser. In dicta, the court noted that if the plaintiff    was in fact regarded as a drug abuser (and if she was not using drugs), or    if she was regarded as an alcoholic, she might have a valid ADA claim.*Id*. at 576. *See also* EEOC    Technical Assistance Manual on the ADA, which states that �tests for    illegal use of drugs also may reveal the presence of lawfully-used drugs. If    a person is excluded from a job because the employer erroneously    �regarded� him/her to be an addict currently using drugs illegally when    a drug test revealed the presence of a lawfully prescribed drug, the    employer would be liable under the ADA.� Ibid. at � 8.9.

[12]*See*    EEOC Technical Assistance Manual on the ADA � 8.5. *See    also* Hartman v. City of Petaluma, 841 F. Supp. 946, 949 (N.D. Cal. 1994)    (there must be �some indicia of dependence� to be considered    substantially limiting a major life activity).

[13] EEOC Technical Assistance    Manual on the ADA � 8.5.

[14] The Institute for a    Drug-Free Workplace, a nonprofit corporation, was established in 1989 as an    independent private sector coalition. Its membership includes major    employers and employer organizations, including leading American companies    in petrochemical, manufacturing, high technology, construction,    pharmaceutical, hospitality, retail, and transportation industries. The    institute is active on legislative, legal, and regulatory issues at the    federal, state, and local levels. *See**1999�2000 Guide to State and Federal    Drug-Testing Laws*, by Mark A. de Bernardo and Nancy N. Delogu, published    by the Institute for a Drug-Free Workplace, Washington, D.C.

[15] Nancy Delogu Testimony,    Hearing Transcript, p. 12.

[16] Mark Rothstein Testimony,    Hearing Transcript, p. 17.

[17]*See*    29 C.F.R. � 1630.3, app. at 357 (1999).

[18] EEOC Technical Assistance    Manual on the ADA � 8.3.

[19] 176 F.3d 847, 867 (5th    Cir. 1999).

[20] 160 F.3d 977 (3d Cir.    1998).

[21]*Id*.    at 980.

[22] 107 F.3d 274 (4th Cir.    1997).

[23]*Id*.    at 275.

[24]*Id*.

[25]*Id*.

[26]*Id*.    at 278.

[27]*Id*.

[28] Delogu Testimony, Hearing    Transcript, p. 12.

[29] EEOC Technical Assistance    Manual on the ADA � 8.3.

[30]*See*    Cong. Rep. 336, 101st Cong. 2d Sess. (1990).

[31] 63 F.3d 828 (9th Cir.    1995), *cert*. *denied*,    516 U.S. 1048 (1996).

[32]*Id*.    at 830.

[33]*Id*.    at 833.

[34]*Id*.

[35]*Id*.

[36]*Id*.

[37] Similarly, in McDaniel v.    Mississippi Baptist Med. Ctr., 877 F. Supp. 321 (S.D. Miss. 1994), *aff�d,*    74 F.3d 1238 (5th Cir. 1995), the plaintiff had illegally used drugs and    entered a drug treatment center prior to his termination. The court held    that even though the plaintiff had entered treatment, he still was not    protected by the ADA because he had not been drug free for a �considerable    length� of time. In this case, the plaintiff said that he had not used    drugs for only a few weeks.

[38] Employers do not have to    provide an accommodation that causes an �undue hardship,� meaning    significant difficulty or expense. The analysis used to determine undue    hardship focuses on the particular employer�s resources, and on whether    the accommodation is unduly extensive, substantial, or disruptive, or would    fundamentally alter the nature or operation of the business. 42 U.S.C. �    12111(10) (1994); 29 C.F.R. � 1630.2(p) (1999). Another defense to an    allegation of discrimination is �direct threat,� meaning a significant    risk to the health or safety of others that cannot be eliminated by    reasonable accommodation. *See* 42    U.S.C. � 12111(3); 29 C.F.R. �� 1630.2(r), 1630.15(b)(2).

[39]*See*    42 U.S.C. � 12111(9) (1994); 29 C.F.R. � 1630.2(o)(2) (1999).

[40]*See*,    *e.g*., Adamczyk v. Baltimore    County, No. 97-1240, 1998 U.S. App. LEXIS 1331 (4th Cir. 1998) (alcoholism    is covered under the Rehabilitation Act); Mararri v. WCI Steel, Inc., 130    F.3d 1180, 1185 (6th Cir. 1997) (the ADA �treats drug addiction and    alcoholism differently�).

[41] 79 F.3d 1003 (10th Cir.    1996). *See**also*    Adamczyk v. Baltimore County, 1998 U.S. App. LEXIS 1331 (4th Cir. 1998)    (alcoholism is covered under the Rehabilitation Act); Miners v. Cargill    Communications, Inc., 113 F.3d 820 (8th Cir. 1997), *cert*.    *denied*, 118 S. Ct. 441 (1997) (where plaintiff could show she was    regarded as being an alcoholic, she was �disabled within the meaning of    the ADA�); Office of the Senate Sergeant-at-Arms v. Office of Senate Fair    Employment Practices, 95 F.3d 1102 (Fed. Cir. 1996) (�it is    well-established that alcoholism meets the definition of a disability�).

[42] 79 F.3d 1003 (10th Cir.    1996).

[43] 119 F.3d 305 (5th Cir.    1997), *cert*. *denied*,    118 S. Ct. 871 (1998).

[44]*Id*.    at 322.

[45] 153 F.3d 681 (8th Cir.    1998).

[46]*Id*.    at 686.

[47] 119 S. Ct. 2139, 527 U.S.    471 (1999).

[48] 119 S. Ct. at 2142.

[49] 42 U.S.C. � 12114. *See*    Walker v. Consol. Biscuit Co., 522 U.S. 1028 (1997) (the court held that the    employer could terminate an employee for violating its rule prohibiting    employees from being under the influence of alcohol in the workplace).

[50] 42 U.S.C. � 12114    (1994).

[51] 42 U.S.C. � 12114    (1994).

[52] EEOC Technical Assistance    Manual on the ADA � 8.4.

[53] Ibid.

[54] Ibid.

[55] 868 F. Supp. 383 (D.    Mass. 1994); *aff�d* 94 F.3d 640    (1st Cir. 1996).

[56]*See    also* Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir.    1997), *cert*. *denied*, 118 S. Ct.    441 (1997), in which the court found that evidence of inconsistent    enforcement of a policy concerning alcohol use (e.g.,    not enforcing the policy against management employees) was relevant in    showing discrimination against an employee �regarded as� being an    alcoholic.

[57] EEOC Technical Assistance    Manual on the ADA � 8.7.

[58]*See*the preceding    discussion under �Reasonable Accommodation for Drug Addicts� in this    chapter.

[59] 42 U.S.C. � 12111(9)    (1994); 29 C.F.R. � 1630.2(o)(2) (1999).

[60] 42 U.S.C. � 12111(9); 29    C.F.R. � 1630.2(o)(2).

[61] 864 F. Supp. 991 (D. Ore.    1994).

[62]*Id*.    at 996.

[63] 135 CONG. REC. S10777    (daily ed. Sept. 7, 1989).

[64] S. REP. NO. 101-116    (1989).

[65]*See*    Johnson v. Babbitt. Pet. No. 03940100, MSPB No. SF-0752-93-0613-I-1 (EEOC    3/28/96).

[66]*See*    Equal Employment Opportunity Commission, �Enforcement Guidance on    Reasonable Accommodation and Undue Hardship,� no. 915.002 (Mar. 1, 1999). *See**also* Adamczyk v. Baltimore County, 1998 U.S. App. LEXIS 1331 (4th    Cir. 1998), where the employer fired a police officer for misconduct    allegedly caused by alcoholism, and the employer was not required to permit    the officer to seek treatment before taking adverse action.

[67] 864 F. Supp. 991 (D. Ore.    1994).

[68]*Id*.    at 997.

[69] 916 F.2d 558, 562 (9th    Cir. 1990).

[70] Similarly, in Evans v.    Fed. Express Corp., 133 F.3d 137 (1st Cir. 1998), the court held that the    employer was not required to provide a second leave of absence to an    employee for substance abuse treatment. The court noted, �It is one thing    to say that further treatment made medical sense, and quite another to say    that the law required the company to retain [the employee] through a    succession of efforts.�

[71] 920 F. Supp. 1000 (D.    Minn. 1995).

[72]*Id*.    at 1006.

[73] 203 F.3d 723 (10th Cir.    2000).

[74]*Id*.    at 730.

[75]*Id*.    at 730�731.

[76] 1997 U.S. app. LEXIS    17755 (9th Cir. 1997).

[77]*Id*.    at *3.

[78]*Id*.    (emphasis added).

[79] 62 F.3d 843 (6th Cir.    1995).

[80]*Id*.    at 845.

[81]*Id*.

[82]*Id*.

[83] Other courts, too, have    held that an employer may terminate an employee because of improper conduct,    even if the conduct is a direct result of alcoholism. In Williams v.    Widnall, 79 F.3d 1003 (10th Cir. 1996), it was held that an employer    lawfully fired an employee because of his threatening conduct, even though    the conduct may have been a result of alcoholism. And in Newland v. Dalton,    81 F.3d 904 (9th Cir. 1996), it was held that an employer lawfully fired an    employee because of a �drunken rampage,� even if it was related to    alcoholism.

[84] 868 F. Supp. 383 (D.    Mass. 1994), *aff�d*, 94 F.3d 640    (1st Cir. 1996).

[85]*Id*.    at 387.

[86]*Id*.

[87] 42 U.S.C. � 12111(3)    (1994).

[88] 42 U.S.C. � 12113(b)    (1994). An employer is also permitted to require that an individual not pose    a direct threat of harm to his or her own safety or health. *See*    29 C.F.R. � 1630.2(r), app. at 356 (1999).

[89] 42 U.S.C. � 12113(a)    (1994).

[90] 29 C.F.R. � 1630.2(r)    (1999). The regulations state that the assessment shall be based on a    medical judgment that relies on the most �current� medical knowledge    and/or on the �best available objective evidence.�

[91] 29    C.F.R. � 1630.2(r)    (1999).

[92] 29 C.F.R. � 1630.2(r),    app. at 356 (1999).

[93] 29 C.F.R. � 1630.2(r),    app. at 356 (1999). *See also* EEOC    Technical Assistance Manual on the ADA � 8.7, which states: �An employer    cannot prove a �high probability� of substantial harm simply by    referring to statistics indicating the likelihood that addicts or alcoholics    in general have a specific probability of suffering a relapse. A showing of    �significant risk of substantial harm� must be based upon an assessment    of the particular individual and his/her history of substance abuse and the    specific nature of the job to be performed.�

[94] 967 F. Supp. 208 (N.D.    Tex. 1997); *reversed and remanded in*    203 F.3d 871 (5th Cir. 2000).

[95] The ADA defines direct    threat as �a significant risk to the health or safety of others that    cannot be eliminated by reasonable accommodation.� EEOC v.**Exxon,    967 F. Supp.  210. *See*    42 U.S.C. � 12111(3) (1994).

[96] The ADA states: �It may    be a defense to a charge of discrimination under this Act that an alleged    application of qualification standards, tests, or selection criteria that    screen out or tend to screen out or otherwise deny a job or benefit to an    individual with a disability has been shown to be job related and consistent    with business necessity, and such performance cannot be accomplished by    reasonable accommodation, as required under this title.� *Id.* at    210. *See* 42 U.S.C. � 12113(a)    (1994).

[97] 967 F. Supp. 209�10.    The named plaintiffs were two Exxon employees who had been working as flight    engineers but were demoted in 1994 to mechanics when they were asked whether    they had a history of drug or alcohol abuse. Salvatore Filippone, who was in    his late 40s, had been convicted of abusing a prescription drug when he was    19 years old. He went into rehabilitation, never abused drugs again, and in    1983 joined Exxon, where he was responsible for monitoring aircraft systems    during flight, according to EEOC documents filed in federal court. Glenn    Hale, who went into treatment for alcohol abuse in 1985, was hired by Exxon    as a flight engineer in 1988. He abstained from drinking and never had a    relapse, according to the EEOC court filing. *Id*.

[98]*Id*.    at 210. The company defined a �designated position� as one in which    failure could cause a catastrophic incident, and for which the employee    plays a key and direct role with either no direct or very limited    supervision. *Id*.

[99]*Id*.    at 209�10. Exxon adopted its substance abuse policy after the Exxon Valdez    ran aground in Alaska and dumped 11 million gallons of oil into the Prince    William Sound. The company, eager to avoid another Valdez disaster, applied    the policy to plant operators, drivers, and ships� mates after news    reports surfaced that the captain of the Valdez, Joseph Hazelwood, had been    drinking and that Exxon officials knew he had sought treatment for his    drinking problem four years before the accident. Mr. Hazelwood was later    cleared by a jury of intoxication charges. *See*    Seahawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900 (9th Cir.    2000); State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

[100]*See* 29 C.F.R. � 1630.2(r), app.    at 356 (1999), which states, �Determining whether an individual poses a    significant risk of substantial harm to others must be made on a case by    case basis.�

[101]    967 F. Supp.  210.

[102]*Id*.

[103]*Id*. at 214.

[104]    These statutes included the Rehabilitation Act, the Age Discrimination in    Employment Act (ADEA), and Title VII �because these statutes are similar    in purpose to the ADA and have often been relied upon in interpreting the    ADA.� *Id.* at 212. *See* Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir.    1996); Daigle V. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).    The court noted that Rehabilitation Act case law �is especially persuasive    given that the ADA is modeled after the Rehabilitation Act and Congress has    directed that the two acts� judicial and agency standards be    harmonized.� 967 F. Supp. 212.

[105]    203 F.3d 871, 873 (5th Cir. 2000).

[106]*Id*. at 874.

[107]*Id*. The court stated: �We have    found nothing in the statutory language, legislative history or case law    that persuades that the direct threat provision addresses safety-based    qualification standards in cases where an employer has developed a standard    applicable to all employees of a given class. We hold that an employer need    not proceed under the direct threat provision of � 12113(b) in such cases    but rather may defend the standard as a business necessity.� *Id*.    at 874.

[108]    Delogu Testimony, Hearing Transcript, p. 14. Ms. Delogu testified later in    the hearing that employers should not �be able to exclude all former    substance abusers for some very broad and undefined categories of    safety-sensitive jobs. I do believe, however, . . . that there should be a    mechanism for those very safety-critical positions to make this    exception.� Ibid., pp. 39�40.

[109]    Kenneth Collins Testimony, Hearing Transcript, p. 16.

[110]    Ibid.

[111]    Ibid.*See also* testimony of Dr.    Joseph Autry, the acting deputy administrator in the Substance Abuse and    Mental Health Services Administration of the Department of Health and Human    Services, who also emphasized the importance of follow-up treatment:    �Increasingly research is indicating that relapse prevention following    treatment and drug testing or alcohol testing are probably the most    important things in keeping someone drug and alcohol free as they return to    the workplace. . . . There needs to be ongoing rehabilitation, if you will,    or relapse prevention, interventions, coupled with testing in order to    maintain sobriety or to be drug free.� Joseph Autry Testimony, Hearing    Transcript, pp. 35�36.

[112]    Rothstein Testimony, Hearing Transcript, p. 19.

[113]    Ibid., p. 32.

[114]    158 F.3d 361 (6th Cir. 1998), *cert.    denied*, 120 S. Ct. 46 (1999).

[115]*Id*. at 363. *But see* Chandler v. Miller, 520 U.S. 305 (1997), in which the    Supreme Court held that a Georgia policy requiring all candidates for public    office to submit to drug tests violated the Fourth Amendment�s requirement    that a search be justified either by particularized suspicion or by    �special needs� beyond crime detection.

[116]    Rothstein Testimony, Hearing Transcript, p. 31. Mr. Rothstein testified    later in the hearing that �drug testing, where necessary, should be    limited to the smallest group of people possible, not demonstrated as a    badge that the company disapproves of illicit substances.� Ibid., p. 41.

[117]    Ellen Weber Testimony, Hearing Transcript, p. 21.

[118]    EEOC Technical Assistance Manual on the ADA � 8.8.

[119]    Ibid.

[120]    Ibid.

[121]    �Pre-employment Disability-Related Questions and Medical Examinations�    was issued by the EEOC on Oct. 10, 1995.

[122]    EEOC Technical Assistance Manual on the ADA � 8.8.

[123]    Ibid.

[124]    Ibid. � 8.9.

[125]    Ibid.

[126]    Ibid.

[127]    Ibid.

[128]    Ibid. �� 8.6, 8.9.

[129]    Delogu Testimony, Hearing Transcript, p. 13.

[130]    EEOC Technical Assistance Manual on the ADA � 8.9.

[131]    Rothstein Testimony, Hearing Transcript, pp. 18�19.

[132]    EEOC Technical Assistance Manual on the ADA � 8.9. For example, if drug    test results indicate that an individual is HIV positive, or that a person    has epilepsy or diabetes because use of a related prescribed medicine is    revealed, this information must remain confidential. Ibid.

[133]    Ibid. � 8.10.