42 U.S.C. § 12114 — Illegal use of drugs and alcohol

Page 8244 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12114 1 So in original. Probably should be ‘‘transmissibility’’. standards, employment tests, or other selection criteria based on an individual’s uncorrected vi- sion unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity. (d) Religious entities (1) In general This subchapter shall not prohibit a reli- gious corporation, association, educational in- stitution, or society from giving preference in employment to individuals of a particular reli- gion to perform work connected with the car- rying on by such corporation, association, edu- cational institution, or society of its activi- ties. (2) Religious tenets requirement Under this subchapter, a religious organiza- tion may require that all applicants and em- ployees conform to the religious tenets of such organization. (e) List of infectious and communicable diseases (1) In general The Secretary of Health and Human Serv- ices, not later than 6 months after July 26, 1990, shall— (A) review all infectious and commu- nicable diseases which may be transmitted through handling the food supply; (B) publish a list of infectious and commu- nicable diseases which are transmitted through handling the food supply; (C) publish the methods by which such dis- eases are transmitted; and (D) widely disseminate such information regarding the list of diseases and their modes of transmissability 1 to the general public. Such list shall be updated annually. (2) Applications In any case in which an individual has an in- fectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or con- tinue to assign such individual to a job involv- ing food handling. (3) Construction Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applica- ble to food handling which is designed to pro- tect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by rea- sonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability 1 published by the Secretary of Health and Human Services. (Pub. L. 101–336, title I, § 103, July 26, 1990, 104 Stat. 333; Pub. L. 110–325, § 5(b), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (e)(3), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. AMENDMENTS 2008—Subsecs. (c) to (e). Pub. L. 110–325 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12114. Illegal use of drugs and alcohol (a) Qualified individual with a disability For purposes of this subchapter, a qualified in- dividual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered en- tity acts on the basis of such use. (b) Rules of construction Nothing in subsection (a) shall be construed to exclude as a qualified individual with a dis- ability 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 rehabili- tation 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 admin- ister reasonable policies or procedures, includ- ing 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 em- ployees; (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 estab- lished under chapter 81 of title 41; (4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employ- ment or job performance and behavior that Page 8245 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12116 such entity holds other employees, even if any unsatisfactory performance or behavior is re- lated 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 De- partment of Defense, if the employees of the covered entity are employed in an industry subject to such regulations, including com- plying 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 po- sitions (as defined in the regulations of the Department of Defense); (B) employees comply with the standards established in such regulations of the Nu- clear Regulatory Commission, if the employ- ees of the covered entity are employed in an industry subject to such regulations, includ- ing 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 De- partment of Transportation, if the employ- ees of the covered entity are employed in a transportation industry subject to such reg- ulations, including complying with such reg- ulations (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 de- fined in the regulations of the Department of Transportation). (d) Drug testing (1) In general For purposes of this subchapter, a test to de- termine the illegal use of drugs shall not be considered a medical examination. (2) Construction Nothing in this subchapter shall be con- strued 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 Transpor- tation of authority to— (1) test employees of such entities in, and applicants for, positions involving safety-sen- sitive 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 sub- section (c). (Pub. L. 101–336, title I, § 104, July 26, 1990, 104 Stat. 334; Pub. L. 110–325, § 5(c)(2), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. CODIFICATION In subsec. (c)(3), ‘‘chapter 81 of title 41’’ substituted for ‘‘the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–325 substituted ‘‘a quali- fied individual with a disability shall’’ for ‘‘the term ‘qualified individual with a disability’ shall’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12115. Posting notices Every employer, employment agency, labor organization, or joint labor-management com- mittee covered under this subchapter shall post notices in an accessible format to applicants, employees, and members describing the applica- ble provisions of this chapter, in the manner prescribed by section 2000e–10 of this title. (Pub. L. 101–336, title I, § 105, July 26, 1990, 104 Stat. 336.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12116. Regulations Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an acces- sible format to carry out this subchapter in ac- cordance with subchapter II of chapter 5 of title 5. (Pub. L. 101–336, title I, § 106, July 26, 1990, 104 Stat. 336.)