U.S. Code » Title 42 » Chapter CHAPTER 126— EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES › Subchapter SUBCHAPTER I— EMPLOYMENT

42 U.S.C. § 12114

Illegal use of drugs and alcohol

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(a) Qualified individual with a disability

For purposes of this subchapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(b) Rules of constructionNothing in subsection (a) shall be construed to exclude as a qualified individual with a disability 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 rehabilitation 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 administer reasonable policies or procedures, including 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 entityA covered entity—(1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;(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 established 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 employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related 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 Department of Defense, if the employees of the covered entity are employed in an industry subject to such regulations, including 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 Department of Defense);(B) employees comply with the standards established in such regulations of the Nuclear Regulatory Commission, if the employees of the covered entity are employed in an industry subject to such regulations, including 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 Department of Transportation, if the employees of the covered entity are employed in a transportation industry subject to such regulations, including complying with such 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 Department of Transportation).(d) Drug testing(1) In general

For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination.

(2) Construction

Nothing in this subchapter shall be construed 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 employeesNothing 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 Transportation of authority to—(1) test employees of such entities in, and applicants for, positions involving safety-sensitive 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 subsection (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 NotesReferences 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 qualified individual with a disability shall” for “the term ‘qualified individual with a disability’ shall”.

Statutory Notes and Related SubsidiariesEffective 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.

Notes of Decisions
Cited in 186 cases (37 in the last 5 years), 1991–2026 · leading case: Karen L. Brown, Plaintiff-Appellant-Cross-Appellee v. Lucky Stores, Inc. John Hunt, Defendants-Appellees-Cross-Appellants, 246 F.3d 1182 (9th Cir. 2001).
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Karen L. Brown, Plaintiff-Appellant-Cross-Appellee v. Lucky Stores, Inc. John Hunt, Defendants-Appellees-Cross-Appellants, 246 F.3d 1182 (9th Cir. 2001). · cites it 5× “*1186 This appeal requires us to address the scope of the ADA’s so-called “safe harbor” provision, 42 U.S.C. § 12114 (b)(2), which extends the Act’s protections to an individual “participating in a supervised rehabilitation program, and .”
Velma Bates v. Dura Auto. Sys., Inc., 767 F.3d 566 (6th Cir. 2014). · cites it 8× “See 42 U.S.C. § 12114 (d)(1) (“[A] test to determine the illegal use of drugs shall not be considered a medical examination.”
Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997). · cites it 6× “42 U.S.C. § 12114 (c)(4) (1994); see also 42 U.”
Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011). · cites it 8× “” 42 U.S.C. § 12114 (a). But the ADA also creates a “safe harbor” for those who are not currently engaging in the illegal use of drugs.”
Loder v. City of Glendale, 927 P.2d 1200 (Cal. 1997). · cites it 6× “ore, although the ADA places some significant limitations upon the circumstances under which an employer may require current employees or applicants for employment to undergo medical examinations, the act contains a specific provision declaring that "[f]or purposes of this…”
Tom Zenor v. El Paso Healthcare Sys., Ltd., Doing Bus. as Columbia Med. Ctr.-East Columbia Med. Ctr.-East, 176 F.3d 847 (5th Cir. 1999). · cites it 4× “42 U.S.C. § 12114 specifically exempts current illegal drug users from the definition of qualified individuals.”
Deborah Shafer v. Preston Mem'l Hosp. Corp. Victoria Adams, 107 F.3d 274 (4th Cir. 1997). · cites it 5× “” 42 U.S.C.A. § 12114 (a) (West 1995) (ADA); accord 29 U.”
Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998). · cites it 5× “42 U.S.C. § 12114 (c)(4). The Rehabilitation Act similarly removes unsatisfactory conduct caused by alcoholism from its purview, stating that the term “ ‘individual with a disability’ .”
Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014). · cites it 3× “See 42 U.S.C. § 12114 (a), (b); cf. Bailey v.”
Bryan Shirley v. Precision Castparts Corp., 726 F.3d 675 (5th Cir. 2013). · cites it 4× “He reasons that the district court “mixed up the standard for falling into the disqualifying provision of 42 U.S.C. § 12114 (a) and the standard for obtaining the protection of the safe harbor provision of 42 U.”
Bailey v. Real Time Staffing Servs., Inc., 927 F. Supp. 2d 490 (W.D. Tenn. 2012). · cites it 9× “) In his response in opposition to summary judgment, Bailey maintains that the issue is “straightforward” in this case: whether Select Staffing erroneously regarded Bailey as an illegal drug user in violation of 42 U.S.C. § 12114 (b). (Pl.’s Resp., D.E.”
Daniel Pernice v. City of Chicago, 237 F.3d 783 (7th Cir. 2001). · cites it 3× “” 42 U.S.C. § 12114 (c)(4). 1 For example, in Martin v.”
Show all 186 citing cases →
— 42 U.S.C. § 12114(b) — 1 case
Bryan Shirley v. Precision Castparts Corp., 726 F.3d 675 (5th Cir. 2013). “He reasons that the district court “mixed up the standard for falling into the disqualifying provision of 42 U.S.C. § 12114 (a) and the standard for obtaining the protection of the safe harbor provision of 42 U.”
— 42 U.S.C. § 12114(c) — 1 case
Evans v. Fed. Express (1st Cir. 1998).
— 42 U.S.C. § 12114(c)(4) — 1 case
Annie Miners v. Cargill Commc'ns, Inc., a Minnesota Corp., 113 F.3d 820 (8th Cir. 1997).
— 42 U.S.C. § 12114(d) — 1 case
Lehenky v. Toshiba Am. Energy Sys. Corp. (E.D. Pa. 2022).
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