The annual cost to companies who employ people that are abuse drugs and/or alcohol is staggering. The numbers are literally up into the billions of dollars. These costs are generated from workplace accidents, errors in judgment, absenteeism, and theft. In fact, there is research that has indicated that at least ten percent of the working-age population has some sort of substance-abuse problem. Employers and insurers have, in the past, had a tendency to overlook the problem and just find a different reason to terminate the employee. Why? Social stigma…moral failing…lack of character. But wait…isn’t addiction a disease?
This is why the Americans with Disabilities Act (ADA) offers protection. In certain circumstances an employee’s status as an alcoholic or a recovering drug addict may merit protection under the ADA. This includes when an addicted employee is in rehabilitation and is no longer using. Keep in mind that an employee or job applicant is not “a qualified individual with a disability” if he or she is “currently engaging in the illegal use of drugs.”
Illegal drug use includes the illegal misuse of painkilling drugs which are controlled by prescription. So long as the employee’s illegal drug use is “sufficiently recent to justify the employer’s reasonable belief that the drug abuse remains an ongoing problem,” the employee is unprotected by the ADA, even if the employee enters treatment.
What’s more, if an employee’s performance is not good or declining, an employer can legitimately take action on the basis of the employee’s poor performance. The ADA specifically provides that an employer “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 it holds for other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee
So, while the ADA specifically excludes employees “currently engaging in the illegal use of drugs,” it provides a so-called “safe harbor” for employees who:
- · have successfully completed a supervised drug rehabilitation program or have been otherwise rehabilitated and are no longer engaging in drug use
- · are attending a supervised rehabilitation program and are no longer engaging in drug use
Employees generally cannot benefit from the safe harbor provision if they have not refrained from the illegal use of drugs for a sufficient period of time. So long as an employer has a reasonable belief that the employee’s illegal drug use is on-going, an employer may consider that employee to be “currently engaging in the illegal use of drugs” and may take action on that basis.
When the courts become involved and must consider evaluating whether an employer could maintain a reasonable belief that the drug use is ongoing and will continue to impact the employee’s ability to his job. The courts will consider the severity of the addiction, relapse rates for that particular substance, the level of the employees past responsibility, applicable job and performance requirements, level of competence, and the employee’s past performance record.
It is important to understand that even employees who qualify for the safe harbor provision do not get it automatically and must still establish all elements of a disability discrimination claim. In addition, it is up to the employee to demonstrate that his addiction amounts to a “disability” because it substantially limits one or more major life activities.
The employee must demonstrate that he can perform the essential functions of his job without reasonable accommodation. If an employee can establish all of these elements, then an employer is prohibited from acting on the basis of that employee’s drug abuse. Although the employer can act on the basis of the employee’s poor performance, even if that poor performance is a result of the drug abuse.
The ADA covers to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994.
The act is in place to protect those who really need it but will not tolerate those who are trying to be deceiving in any way. While the rules are tough and very strict, this often has to be the case when it comes to managing addiction, which is a naturally deceptive disease. An employer should also recognize that an employee with a substance addiction is not a lost cause. They can recover and come back to their job better than ever!
