Accommodating Workers with a History of Substance Abuse

Employers don't have to accommodate any alcohol or illicit drug use in the workplace, but they must be careful not to discriminate against workers with a history of substance abuse who are no longer using.

The Americans with Disabilities Act (ADA) protects workers from discrimination based on a qualifying disability or a perceived disability—including alcoholism and past illegal drug use, explained Todd Wulffson, an attorney with Carothers DiSante & Freudenberger in Orange County, Calif.

Therefore, employers should try to arrange a reasonable accommodation if, for example, an employee needs to leave early for an Alcoholics Anonymous meeting, Wulffson explained.

The ADA covers businesses with 15 or more employees and protects workers with a history of illicit drug use who:

• Have successfully been rehabilitated and are no longer using illegal drugs.
  
• Are currently participating in a rehabilitation program and are no longer using illegal drugs.
  
• Are erroneously regarded as illegal drug users.
  

Alcoholism may also be considered an ADA-qualifying disability, but employers may:

• Prohibit the use of alcohol in the workplace.
  
• Forbid employees from being under the influence of alcohol in the workplace.
  
• Hold employees with alcoholism to the same performance standards as other employees, even if alcoholism is the reason for substandard performance.
  

"All employers should have a clear, written drug and alcohol policy in place that is supportive and written in a way that employees with addiction problems feel safe to come forward," said Rebecca Flood, CEO and executive director at New Directions for Women—a drug and alcohol rehabilitation program for women in Southern California.

[SHRM members-only policy: Drug Testing: Drug and Alcohol]

Illegal Drug Use

A recent federal court decision in Nevada serves as a reminder that employers don't have to accommodate current illegal drug use, Wulffson said. In Scott v. Harrah's LLC, No. 2:17-cv-01066 (D. Nevada 2017), casino worker Donald Scott told his employer that he had a substance abuse problem, and the casino accommodated his drug treatment program by adjusting his work schedule. After two stints in rehab, Scott failed a drug test and the casino fired him for allegedly "not taking his rehab and treatment program seriously."

Scott filed a lawsuit claiming that the casino violated the ADA by firing him for having a history of drug addiction.

But the court dismissed his claim. The court recognized that a drug addiction that "substantially limits" one or more major life activities qualified as a disability under the ADA. However, it said that the definition of "an individual with a disability" doesn't include "an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."

State Laws

Employers must also be mindful of state laws that protect employees with disabilities—which could provide more protection than the ADA. For example, California's Fair Employment and Housing Act (FEHA) covers medical conditions as well as disabilities.

FEHA is also much broader than the ADA, Wulffson noted. The ADA protects an employee with a physical or mental impairment that "substantially" limits the performance of a major life activity, whereas FEHA doesn't use the word "substantially" and simply protects an employee with an impairment that limits a major life activity. FEHA also generally applies to businesses with five or more employees.

Further complicating matters, marijuana use is now legal—at least to some degree—in many states. Wulffson said employers can get confused about whether they must accommodate medical marijuana use in the workplace.

He noted that marijuana remains a Schedule I drug at the federal level (just like heroin and LSD) and that any use of the drug (medicinally or recreationally) is still illegal under federal law.

However, state laws do vary as to whether they protect registered medical marijuana users from workplace discrimination.

[SHRM members-only multistate coverage: Multistate Employer Resources] 

In New York, for example, certified medical marijuana users are considered individuals with disabilities under the state's human rights law. 

The Massachusetts high court recently allowed a registered medical marijuana user to pursue a state-law disability discrimination claim against a former employer. She was fired because she tested positive for marijuana—which she claimed to have used off duty—and her employer didn't engage in an interactive process to explore reasonable accommodations. 

In California, however, there are no protections for current use or for failing a drug test. 

Wulffson recommended that employers communicate to workers that they will always do their best to accommodate the underlying medical condition, but can't accommodate drug use of any kind at work.

"No court anywhere in the U.S. has said that someone has to remain employed after being caught using on the job," he noted.

For employers in states where marijuana use is now legal, he recommends having a policy that specifically states that marijuana use in the workplace is impermissible, rather than just stating that "illegal drug use will not be tolerated." Otherwise, workers may argue that marijuana is "legal" and that they didn't know it was included as an illegal drug in the policy.

Tips for Employers

Flood said drug and alcohol use at work is more common than employers might think. She cited a 2015 study from the National Council on Alcoholism and Drug Dependence, which found that 70 percent of Americans who are addicted are also employed.

She noted the following key indicators that someone may be under the influence of alcohol or drugs on the job:

• Frequent tardiness or unexplained absences—with sick days consistently falling after payday or on Mondays.
  
• Inconsistent job performance.
  
• A lack of concern over personal appearance and hygiene.
  
• Bloodshot eyes.
  

"Employers should promptly and properly address potential issues with employees they suspect of improperly using substances as outlined in their drug and alcohol policy," Flood said. "Be careful in maintaining boundaries: Don't offer to lend the employee in question money, cover up for him or her, or delegate work to another employee."

As long as employees are willing to get help, they should be granted a leave of absence to seek treatment and rehabilitation without being concerned that they will lose their jobs, she said.

After an employee successfully completes a rehabilitation program, Flood said, employers should schedule an in-person return-to-work meeting. Employers should provide a written document that outlines expectations for the employee who is re-entering the workforce, she added. The agreement should include an acknowledgement that failure to meet the expectations can be grounds for termination, she said.

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