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Employers have reason to be concerned about drug use in connection with the workplace. The Occupational Safety and Health Administration warns employers:

“The vast majority of drug users are employed, and when they arrive for work, they don’t leave their problems at the door. Of the 17.2 million illicit drug users aged 18 or older in 2005, 12.9 million (74.8 percent) were employed either full or part time. Furthermore, research indicates that between 10 and 20 percent of the nation’s workers who die on the job test positive for alcohol or other drugs. In fact, industries with the highest rates of drug use are the same as those at a high risk for occupational injuries, such as construction, mining, manufacturing and wholesale.”

According to OSHA, a comprehensive drug-free workforce approach includes drug testing. But employers continue to have to navigate complicated and sometimes contradictory laws. A recent trial court decision from the Middle District of Tennessee serves as a reminder of how complicated this can be when the employee protections of the Americans with Disabilities Act are considered. The case, White v. Dura Automotive Systems, was decided April 23, on a series of pretrial motions.

There were seven plaintiffs in the case. They worked at a manufacturing facility doing a variety of safety sensitive jobs. The company was alarmed at its high rate of workplace accidents and widespread rumors about drug use. Some of the company’s employees involved in accidents tested positive for drugs afterward. As a result, and in order to address these safety concerns, the company introduced a new drug testing program that identified 12 drugs, some of them legal, which the company believed presented safety hazards in a manufacturing environment.

Under the new program, any employee who failed a screening test had to meet with a consultant, and disclose all prescription medication and associated warnings. The company then reviewed all the information and decided which medications presented risks. Employees were sent home and ordered to transition to drugs the company thought were safer at work.

The plaintiffs argued that the initial screening tests were unlawful under the ADA, which prohibits covered employers from requiring medical examinations and inquiries unless job related and consistent with business necessity. The court identified a key concern: the medical screening was company-wide, and not prompted by the individual conduct of the employees, so it resulted in the per se exclusion of individuals with medical conditions. The court saw this testing, with its heavy emphasis on legally prescribed medication, as a possible example of illegal selection criteria that screen out individuals with disabilities. The court acknowledged that the company could lawfully conduct medical evaluations of its employees under some circumstances, as long as it could show some realistic connection between the screening and the work performed.

In the end, the court agreed that the issues needed to be presented to a jury. The company had presented evidence that its facility was a dangerous place to work, had significant drug-related safety issues, and the company had attempted to screen out only those drugs that it believed could cause impairment. But it cautioned that a reasonable juror could find the screening to be broader and more intrusive than necessary.

Drug testing for illegal drugs is not prohibited by the ADA and is not considered to be medical testing. But employers need to remember that testing for legal drugs is a medical examination and must be based upon a business need. Cannabis, heroin and LSD are illegal; the federal government has placed them on Schedule 1 of the Controlled Substances Act. But many other drugs of abuse have legal uses. Cocaine, codeine, valium, and oxycodone are all legal drugs that are frequently abused.

Employers who have gotten into the habit of thinking that drug tests are not medical tests need to know their facts. Drug testing for illegal drugs is permissible at any time. But drug testing for legal drugs needs to be done within the limits of the Americans with Disabilities Act, just like any other medical examination.

And what about legal drugs that are being abused? Legal drugs being used illegally probably fall into the category of illegal drugs. Just remember that the language of the law is a little fuzzy on this issue, and make sure that your policy is clear.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.