ADA Coverage: Drug v. Alcohol Users, Part 1

While statistics do not give us precise numbers of Americans that are on the job while under the influence of drugs or alcohol, it is a big problem in the U.S. that costs the country billions of dollars and leads to countless lawsuits from both employers and employees. Title I of the Americans with Disabilities Act (”ADA”) permits an employer to ensure that the workplace is free from the use of alcohol and the illegal use of drugs, as well as to comply with other federal laws and regulations that address drug and alcohol abuse, such as the Family Medical Leave Act (“FMLA”) that will be covered in our future blogs.  Simultaneously, the ADA protects alcoholics and recovering drug abusers against discrimination, but this protection is limited.  Moreover, the ADA has different policies regarding drug and alcohol users.

Drug Users and ADA Coverage

According to the ADA, if the employee or a job applicant is currently engaging in the illegal use of drugs, regardless if the user is an addict or a casual user, the employee or a job applicant is not qualified as individual with a disability and thus is not protected by the ADA.  Therefore, employers do not violate the ADA by enforcing its rules by prohibiting illegal use of drugs by employees, as long as this enforcement is done uniformly.

Qualified individuals, as provided in the ADA, are individuals who:

a)       have been successfully rehabilitated and are no longer engaged in the illegal drug use;

b)      are participating in the rehabilitation program at present time and are no longer engaged in the illegal drug use; and

c)       are erroneously considered as using drugs illegally. (42 U.S.C. § 12114(b) (1994))

It is important to note that there is an essential difference between a former drug addict and a former casual drug user.  A former drug addict may be protected under the ADA since the addiction may be considered as a substantially limiting impairment.  On the other hand, a former casual drug user is not protected according to the EEOC Technical Assistance Manual on the ADA because this user is not “substantially limited” due to a drug use. (EEOC Technical Assistance Manual on the ADA § 8.5)

Based on the “qualified individuals” definition above, the ADA does not protect those users of illegal drugs that are currently engaged in this behavior.   However, the definition of “current” has been causing a lot of difficulty to employers.  The EEOC Technical Assistance Manual on the ADA provides this definition: “’Current’ drug use means that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.” Also, if an individual tests positive for the illegal use of drugs, this person is considered a current drug user under the ADA (EEOC Technical Assistance Manual on the ADA § 8.3)

Sometimes a question is raised whether an employee who is addicted to drugs and breaks the company rules, can enroll in a supervised drug rehabilitation program and claim ADA protection to avoid an employer’s discipline.  The EEOC Technical Assistance Manual on the ADA speaks directly to that and states:

“An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming that s/he now is in rehabilitation and is no longer using drugs illegally. A person who tests positive for the illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation”(EEOC Technical Assistance Manual on the ADA § 8.3).

A question that employers often ask regarding former drug addict employees is whether accommodations have to be made.  One of the most important requirements under the ADA is the duty to provide reasonable accommodations to qualified individuals with disabilities.  Former drug addict employees who are no longer engaged in illegal drug use may be entitled to reasonable accommodation.  For example, they may require a modified work schedule to allow them to attend Narcotics Anonymous meetings or a leave of absence to attend treatment.

Check back next month to see our next blog post regarding the ADA coverage of Alcohol Users.

To learn more about ADA protection of Drug Users and what that means for employers, you may contact Dana Perminas at dperminas@messerstrickler.com or by calling Dana at (312) 334-3474.