There is a lot of controversy on the issue of drugs and alcoholism and one of such complexities is the accommodation of drug users and alcoholics under the ADA.
The Americans with Disabilities Act (ADA), passed in 1990, is a US civil right decree that prohibits discrimination against people with various disabilities in all sectors. The aim is to ensure equal rights and opportunities for those who are considered to be living with a disability.
Alcoholism and illicit drug use are rampant in the United States, with 10 to 25% of Americans tagged under DUIs. This report is provocatively one of the highest in the world with an overwhelming economic cost. In 1995, the economic liability of drug and alcohol use was at $276.4 billion of which drugs alone were at $109.8 billion.
The mandate for a drug-free workplace has been enforced by employers for years in line with the federal and state government’s Act. Title I of the ADA regulations specifically states that every employer must comply with the “No illegal use of alcohol and drugs” law.
Bearing in mind that drugs and alcohol can lead to addiction and dependency, and sensitivity to the fact that many individuals are living with addiction to one substance or the other, the question is; can drug addiction be considered a disability under the ADA?
Let’s take a look at a general overview of what is considered the current legal obligation specifically for employers and employees of labor.
Workplace Legal Obligations
- All employees are required to adhere to the drug-free workplace Act of 1988, put in place by the federal drug and alcohol use agencies.
- A person who currently and actively indulges in the use of illicit drugs is not protected under the ADA laws and can be penalized by the employer or the state government.
- Discrimination is quite common, especially in the workplace. The second Act specifically addresses all acts of discrimination against individuals with a history of drug abuse that has been rehabilitated. The law states that employers may not discriminate against individuals who have received medical help for drug addiction and are on recovery stages or alcohol sobriety.
- An employer has all the rights to prohibit the illegal use of alcohol and drugs at workstations.
- Some employers enforce drugs and alcohol tests for employees at various periods and this is acceptable under ADA laws.
- An employer, by law, can decide to refuse or deny employment to a suitable candidate who has been proven to currently engage in the use of illicit drugs or alcohol.
- If for any reason, individuals who currently use drugs and alcohol actively are employed, they are required to perform at the same standard and pace with other regular employees.
With these laws in place, where does the rehabilitated drug user fall under? Are there any considerations for previous alcohol addicts who have been rehabilitated?
Conditions for the ADA Protection
Any employee who currently engages in the use of illicit drugs is not eligible as an “Individual with a disability”. This means that whether the individual is dependent on the drug or just a casual user, as long as they are currently engaging in drug use, they are not qualified for ADA protection.
To answer the question; is drug addiction a disability under the ADA? Yes, it is. So, who is qualified? Here are the conditions for drugs addicts to qualify for ADA protection:
- A drug addict may be considered as a “person with a disability” if they have been rehabilitated and no longer indulges in the illegal use of illicit drugs.
- A person who is currently enrolled in a rehab program and has stopped using illegal drugs may also qualify for ADA protection.
- Those who may have been erroneously regarded as illegal drug users.
The conditions explicitly state that a person who is a former addict to drugs and alcohol may be protected under ADA because addiction to these substances may impair or limit a person’s capacity to work at full potential. However, the EEOC Technical Assistance Manual in line with ADA states that the interest of former casual drugs or alcohol users is not protected under the law.
It is pertinent to state that a former casual user of illegal drugs, who is not addicted to the drug in any way, is not to be considered as an individual with a disability. In order to be “substantively limited” by drug use, the person in question must be addicted to the substance.
Who is a “Current” Drug User?
The word “current” is considered a defining word when dealing with the issues of ADA protection, and yet there isn’t a fully standard law for what qualifies as current. This issue continually distorts the ability of employers to take legal disciplinary decisions against an employee. According to statements, the court is yet to relay a specific duration that can be considered as current, and this, to a great extent has been of concern to employers.
The EEOC as a governing body for matters relating to employment defined “current” to be detectable for employers in a few ways, using the following parameters:
Drug tests before or during employment can be enforced by the employer and if a person accurately tests positive for illicit drugs on a drug test, he/she may be considered as an active drug user and therefore disqualified as a person with a disability.
An employer may take legal actions if an employee tests positive for illegal use of drugs. These tests are considered recent enough for the justification of legal actions.
“Current” may not be a matter of days or weeks but by the individual results of a case study. There are numerous complexities surrounding the issue of the current use of drugs and many individuals have been known to falter even while on rehabilitation and this affects the whole concept of abstinence.
To avoid disciplinary actions at the workplace, many individuals have asked if enrolling in rehab prior to a scheduled drug test can help them keep their jobs. It is assumed that enrollment into a supervised, medical rehabilitation program would enable an employee to claim ADA protection. Employers have stated concerns on how this affects corrective actions against workers who consecutively have disciplinary problems.
The EEOC on the ADA stated that a person who fails a drug test risks termination of employee appointment, regardless of a recent enrollment into a rehabilitation program. In spite of these clear warnings, many employees today still take their argument to the court. In most cases, the employer gets the upper hand despite the employee’s admission into a medical rehab facility.
How Does The Disability Act Accommodate Drug Addicts?
The ADA was enacted to accommodate those who qualify as individuals with disabilities with the condition that these persons are not currently engaging in the use of illicit drugs or have been enrolled in a rehab facility. The perks of this protection generally involve a flexible work schedule from the standard schedule. This modified work schedule should entitle the employee to work-free spaces in order to attend Narcotic Anonymous meetings. The work schedule should also make room for a mandatory leave of absence in order for the employee to seek treatment if required.
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