ADA Accommodations for Drug and Alcohol Use

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 What Is the ADA?

The abbreviation ADA stands for the Americans with Disabilities Act. The ADA is a federal law that provides civil rights protections against workplace discrimination for individuals who have a legally defined disability.

An employer cannot discriminate against a potential employee or an employee based on their membership in a protected class. Disabilities are included in the protected classes.

In addition, the ADA mandates equal opportunity in:

  • Public accommodations;
  • Transportation; and
  • Housing.

The ADA protects both potential employees and employees from discrimination in all aspects of their work environment, including:

  • During the hiring process;
  • On the job; and
  • In firing practices.

There are also specific things that employers are not permitted to ask prospective employees about during the hiring process because they would be considered discriminatory. An employer may, however, as a potential employee whether they can perform essential job functions with or without reasonable accommodations under the ADA.

What Are ADA Accommodations?

An employer is required to make changes to a workplace or a specific position, within reason, so that a disabled employee can do their job. These accommodations can be made in:

  • The work environment;
  • The work schedule; or
  • Work procedures.

These changes allow disabled employees to perform major life activities or essential job functions in the workplace. The ADA also provides guidance for employers regarding how they can comply with drug and alcohol-related disabilities.

Although an employer may prohibit the illegal use of drugs or alcohol at the workplace by all employees, some circumstances exist in which drug or alcohol-related issues qualify as a protected disability.

What Is Considered a Disability Under the ADA?

The ADA provides that a disability may be the following:

  • A mental or physical impairment that substantially limits bodily functions or major life activities;
  • A record of impairment, even if the impairment is not classified as a medical disability; or
  • A condition that results in an individual being regarded as having a disability.

Examples of particular conditions that have been found to be disabilities under the ADA are as follows:

  • Physical conditions, including:
  • Mental and emotional conditions, including:
    • Autism
    • Cerebral palsy
    • HIV infection
    • Multiple sclerosis
    • Mobility impairments
    • Major depressive disorder
    • Bipolar disorder
    • Obsessive-compulsive disorder
    • Schizophrenia

When Is Drug or Alcohol Use a Protected Disability?

As noted above, according to the ADA, an employer may not discriminate against a job applicant or an employee who has undergone a drug rehabilitation program. In addition, an employer is not permitted to discriminate against a job candidate or an employee who is currently undergoing a drug rehabilitation program.

This is contingent upon the job applicant or employee no longer using illegal drugs. The ADA does not provide any protections for any job applicant or employee who is currently using illegal drugs.

The individual would not be considered a qualified individual with a disability under the ADA. In the context of alcohol use, an employer cannot discriminate against a job applicant or an employee as long as their current alcohol consumption does not interfere with their job performance.

An individual’s current alcohol consumption must not pose a threat to their coworkers or to company property. In order for alcohol or drug use to qualify as a protected disability in the workplace, it is not sufficient to simply demonstrate enrollment in a supervised rehabilitation program.

An employer can require additional reasonable assurance that no illegal drug use is currently occurring. An employer may also institute reasonable policies and procedures. For example, drug tests that are in compliance with state testing and privacy laws for the purposes of verification.

The laws that govern these types of tests may vary by state. All of the information related to an employee’s participation in a drug or alcohol abuse treatment program must be kept strictly confidential to prevent discrimination from occurring.

An employer may access an employee’s medical records only for background checking. The employee must agree in writing to share any of this information.

This information can also be accessed if a court orders access. Under federal law, all employers are required to keep medical records separate from other personnel records.

What Should I Do if I Suspect an Employee Has a Drug or Alcohol Problem?

If an employee is engaged in illegal drug use, the employer may initiate a disciplinary action. The action can include a lawful dismissal.

Disciplinary action will apply whether a problem is newly discovered or was resumed after legitimate rehabilitation efforts. In the context of alcohol abuse or the suspicion of alcoholism, there are specific actions an employer should take under ADA guidelines, including:

  • Providing a modified work schedule so the employee may attend rehabilitation programming; or
  • Providing a leave of absence so that the employee may seek treatment.

An alcoholic employee is not necessarily entitled to a firm choice or a last-chance agreement as an accommodation, as employers in the past required. As of 1992, however, an employer has no obligation to warn an alcoholic employee that they will face discipline if they fail to receive treatment for their alcoholism.

An employee may be discharged for any further relapses. As previously noted, an alcohol or drug-related disability does not extend to an applicant or employee who is currently engaging in the illegal use of drugs or whose job performance is affected directly by alcohol or drug use.

An employer may discharge an employee or deny employment to an applicant without facing liability for ADA discrimination. In addition, at-will employment may be terminated for any legal reason or for no reason at all and at any time.

How Do I Stay in Compliance With the ADA?

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the Americans with Disabilities Act. The EEOC guides individuals and businesses on how to comply with the ADA.

This information is available on the EEOC website. An individual or business should consult with an employment lawyer who can conduct a comprehensive review of their practices, employment policies, and any manuals shared with employees to ensure that they are in compliance with ADA requirements.

The EEOC suggests that employers treat employees who request leave for disability-related reasons the same as employees who request leave for reasons that are unrelated to a disability. Suppose an employer provides employees with five days of sick leave without requiring documentation. In that case, the employer cannot require documentation from an employee with depression who wants to use their sick time.

Do I Need an Attorney for ADA Accommodations for Drug and Alcohol Use?

This ADA is a complex law with many requirements. If you are an employee who is facing workplace discrimination related to drug and alcohol abuse, it is important to consult with a discrimination lawyer.

If you are an employer who is interested in developing a compliance program, it may be helpful for you to consult with an attorney to ensure you comply with the requirements of the ADA.

Your attorney can help you understand what the ADA requires and what your specific state mandates. Your attorney can also assist you in filing a civil lawsuit against your employer as well as represent you at any court hearings.

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