The abbreviation “ADA” refers to the Americans With Disabilities Act. The ADA is a federal law that provides civil rights protections against workplace discrimination for Americans who have legally defined disabilities. Employers may not discriminate against an employee, or a potential employee, based on their membership to a protected class. Disability is considered to be a protected class. Additionally, the ADA guarantees equal opportunity in public accommodations, transportation, and housing.
The Act protects both employees and potential employees from discrimination in all aspects of the work environment. This provides protection during the hiring process, on the job, and in firing practices. There are specific things an employer may not ask prospective employees during the hiring process, as it would be discriminatory. However, they may ask potential employees whether they can perform essential job functions, with or without reasonable accommodations under the ADA.
Employers are required to make changes to the workplace or a specific position, within reason, in order to enable disabled employees to do their jobs. These accommodations may be made in the work environment, schedule, or procedures. Such changes allow disabled employees to perform essential job functions or major life activities in the workplace.
The ADA provides specific guidance for employers regarding how to comply with drug and alcohol related disabilities. While employers may prohibit the illegal use of drugs and/or alcohol at the workplace by all employees, some circumstances exist in which drug or alcohol related issues actually qualify as protected disabilities.
When Is Drug And/Or Alcohol Use a Protected Disability?
Once again, under the ADA, employers may not discriminate against employees or job applicants who have undergone drug rehabilitation programs. Additionally, they may not discriminate against employees or candidates who are currently undergoing a drug rehabilitation program. This is contingent upon the individual no longer using illegal drugs. The ADA does not provide protections for any employee or job applicant who is currently using illegal drugs, as they are not a qualified individual with a disability under the Act.
In terms of alcohol use, employers cannot discriminate against an employee or applicant so long as their current alcohol consumption does not interfere with job performance. The individual’s current alcohol consumption must not pose a threat to coworkers, or company property.
In order for drug and/or alcohol use to qualify as a protected disability in the workplace, it is not enough to simply demonstrate enrollment in a supervised rehabilitation program. Employers are allowed to require additional reasonable assurance that no illegal drug use is currently occurring. Employers may also institute reasonable policies and procedures, such as drug tests that are in compliance with state testing and privacy laws, for the purposes of verification. These laws may vary from state to state.
All information concerning an employee’s participation in a drug or alcohol abuse treatment program is to be kept strictly confidential in order to prevent any discrimination. Employers may access an employee’s medical records only for background checking. The employee must agree in writing to share such information, or if a court orders access. According to federal law, all employers are required to keep medical records separate from other, ordinary personnel records.
What Should I Do If I Suspect an Employee Has a Drug or Alcohol Problem?
In an instance involving illegal drug use, an employer may initiate disciplinary actions. These actions may include lawful dismissal. This applies whether the problem is newly discovered, or resumed after legitimate rehabilitation efforts.
In terms of alcohol abuse, or suspicion of alcoholism, there are some specific actions an employer should take according to ADA guidelines. These include:
- Providing a modified work schedule so the employee may attend rehabilitation programming; and/or
- Providing a leave of absence, so the employee can seek treatment.
Alcoholic employees are not necessarily entitled to a “firm choice.” or a last chance agreement, as an accommodation. This was required of employers in the past. However, as of 1992, employers have no obligation to warn alcoholic employees that they will face discipline if they fail to receive treatment for their alcoholism. Employees may be discharged for any further relapses.
As previously mentioned, drug and/or alcohol related disability protection does not extend to an employee or applicant who is currently engaging in the illegal use of drugs, or whose job performance is directly affected by alcohol use. Employers may discharge an employee, or deny employment to an applicant, without facing liability for ADA discrimination. Additionally, at-will employment may be terminated for any legal reason, or no reason at all, at any time.
Do I Need an Attorney for ADA Accommodations for Drug and Alcohol Use?
The ADA is complicated, and understanding the Act may be enhanced by a working knowledge of disability law. Whether you are an employee facing discrimination, or an employer who would like to develop an appropriate compliance program, consulting with a skilled and knowledgeable employment law attorney is in your best interests.
An experienced employment law attorney can help you understand what the ADA requires, as well as what your specific state mandates. Finally, an attorney can assist you in initiating a civil lawsuit against your employer, as well as represent you at any necessary court hearings.