Protection for Employees with Drug & Alcohol Problems under the ADA

Posted under Public Policy on January 10, 2010
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Before a meaningful discussion can be had regarding the interplay between addiction and the Americans with Disabilities Act (ADA), it is first necessary to identify commonly accepted levels of substance consumption as protection can hinge on the particular classification. The consumption of drugs and alcohol is commonly split into three categories: use, abuse, and dependence. Although these terms are frequently used interchangeably by lay people, they each have a particular meaning for substance abuse treatment professionals.

The use of drugs or alcohol does not usually rise to the level of impairment that would constitute a disability, although abuse and dependence do. Drug or alcohol abuse is defined as an intense, regular, or binge consumption. Dependence means compulsive or addictive consumption. Substance abuse and substance dependence are both treatable conditions under the Diagnostic and Statistical Manual IV (DSM-IV), the diagnosis of which focuses on psychological, behavioral, and cognitive symptoms. Most importantly, especially for the purposes of the ADA, the impact of substance abuse on functioning is important in evaluating the severity of the condition. For instance, some drug addicts and alcoholics can function at work even after things have declined at home.

The Americans with Disabilities Act (ADA) protects some substance abusers against employment discrimination. However, because not all instances of drug or alcohol addiction are covered by the ADA, many employers and employees do not understand their rights and responsibilities under the Act. The ADA applies to organizations with at least 15 employees and is administered by the Equal Employment Opportunity Commission (EEOC). The law is federal in nature; each state may have its own disability discrimination law that augments the ADA. Employers must evaluate both state and federal laws when enacting company policies and procedures.

Under the ADA, employers must balance enforcing reasonable workplace safety and behavioral rules with making reasonable accommodations for employees with drug and alcohol problems. At the very least, employers can prohibit employees from coming to work under the influence of drugs or alcohol and engaging in disruptive behavior, even if the behavior is associated with a protected drug or alcohol problem.
This much is clear – employees with past drug or alcohol problems, and some employees with current alcohol problems, are protected under the ADA. However, employees who currently use drugs illegally do not enjoy the same protections. In fact, the legislation points out that current illegal-drug users are not protected if the employer’s actions are based upon the drug use. Further, employers can prohibit the use of illegal drugs or the use of alcohol in the workplace. In Sally v. Circuit City, Inc., a US Court of Appeal found for the employer when it terminated a manager who admitted to using illegal drugs, failed to show for work due to the drug use, and came to work under the influence.

Illegal drug users are not just those who use illicit drugs – the exclusion pertains to those who take prescription drugs unlawfully as well. To be considered a current illegal drug user, and thus not find protection under the ADA, the employee must have used the drug close enough in time to the related employment issue or incident to indicate that there is an on-going problem. This determination must be made on a case-by-case basis and should not encompass behavior that occurred prior to entering a treatment program. Employers are permitted to ensure that employees are no longer using illegal drugs by conducting drug tests and obtaining information from treatment programs.

If an employee is participating in a supervised drug rehab program, such as being enrolled at a drug treatment center, is currently on a methadone maintenance program, or has completed drug treatment, they are protected from discrimination under the ADA. The ADA also protects people who are erroneously targeted as drug abusers during workplace drug testing.

To be protected under the ADA, alcoholics must be at a level of addiction in which the alcoholism impairs one or more major life functions, such as caring for one’s self. However, the person also must be able to perform the “essential functions” of the job with reasonable accommodation for incidental tasks. Active alcoholics will be held to the same performance and conduct standards as other employees, even if job-related issues stem from the alcohol abuse.

In the recent second circuit decision of Vandenbroek v. PSEG Power, the US Court of Appeal upheld summary judgment in favor of the employer, finding that terminating an alcoholic employee was not a violation of the ADA. The employee argued that his alcoholism resulted in his frequently being late to work. The employer argued that Vandenbroek had been terminated due to violation of the no call/no show policy, rather than his alcoholism. The court found that getting to work on-time was an “essential” function of the job and the employee’s lack of ability to do so due to his alcoholism did not entitle him to ADA protection.

JOB APPLICANTS & DRUG TESTING

Under the ADA, a prospective employer may ask about current illegal drug use prior to making an offer of employment; employers can also question employees about current drug use at any time without giving a reason. Employers are also allowed to test job candidates and current employees as well, even if there is no obvious reason to do so.

However, employers must be very careful not to inquire about alcohol use or past drug use prior to making an employment offer. Similarly, current employees can only be questioned about such issues if it is job related or is required by business necessity.

REASONABLE ACCOMMODATION FOR DRUG ADDICTS AND ALCOHOLICS

Recovering drug addicts and alcoholics are entitled to accommodation based on their job requirements and time in recovery. For instance, employees may need time off to attend outpatient treatment, counseling sessions, or 12-step meetings. Some of these requirements may be permanent to avoid relapse. Employers might also allow active alcoholics to enter an in-patient alcohol treatment center using unpaid time off. If the employer provides paid leave for treatment for those suffering from other disabilities, the same benefit must be provided for an alcoholic who enters rehab.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration attorney and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.