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Job Applicants with Past Drug Addiction Protected Under the ADA

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​The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination based on past drug addiction. These individuals qualify as having a disability if they successfully completed a supervised drug rehabilitation program or are currently participating in such a program and are no longer using prohibited drugs.

"Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs," said Rayford Irvin, the Houston district director for the Equal Employment Opportunity Commission (EEOC). "When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction."

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The EEOC recently filed suit in Texas federal court accusing sandblasting and painting services company Steel Painters of Beaumont, Texas, of discriminating against a newly hired worker by firing him because he was on a supervised methadone withdrawal treatment program for a past dependency on opioid medication.

"In the last few years, the EEOC has filed various lawsuits against employers for allegedly discriminating against applicants or employees who are participants in supervised rehabilitation programs," said Keith Watts, an attorney in the Orange County, Calif., office of Ogletree Deakins. "A rehabilitation program may be an inpatient, outpatient or employee assistance program, or a recognized self-help program."

According to the lawsuit, Steel Painters recruited a journeyman painter for a position on a project at a Silsbee, Texas, plant in September 2016. Earlier this decade, the painter suffered a shoulder and arm injury that required surgery and extensive physical rehabilitation. During his recuperation, he became dependent on prescribed opioid pain medication. At the time he was hired by Steel Painters, he was employed in a similar painter position and had been in a treatment program for over a year, taking a dose of prescribed methadone at night after the workday.

He began work and took the pre-employment drug and alcohol test required by Steel Painters, when he learned that the drug test came back positive. Once he provided the lab with a copy of his prescription and other documentation about his treatment however, he was cleared to work.

But he was not permitted to return to his job and was ultimately fired, according to the EEOC. "When an employer regards a worker's impairment as preventing him from doing the job but refuses to consult with the worker's treating doctor and assess the worker's ability to work, the company should expect that the EEOC will enforce the ADA and defend the employee's rights," said Rudy Sustaita, the lead attorney in the agency's Houston district office.

The EEOC is seeking back pay on behalf of the fired painter, compensatory and punitive damages and other relief, including being rehired at the company.

"Employers may want to think carefully about their treatment of applicants and employees who are using drugs for their past drug addictions," Watts said. "Employers may amend their written drug-use policies to include clear exclusions for individuals who are using legally obtained prescription medications in a lawful manner, and train managers who evaluate candidates and employees on such matters. When reviewing applicants or employees, employers may conduct individualized assessments to determine whether the applicant or employee's lawful use of a prescription medication poses a direct threat to the individual or others, and whether the individual can safely perform the essential functions of his or her position with or without reasonable accommodation."


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