The Americans with Disabilities Act provides specific guidance for employers on how to comply with drug and alcohol related disabilities. While an employer may prohibit the illegal use alcohol or drug use at the workplace by all employees, there are certain circumstances in which drug or alcohol related issues qualify as protected disabilities.

When is Drug or Alcohol Use a Protected Disability?

Employers may not discriminate against employees or job applicants who have undergone, or are currently enrolled in, drug rehabilitation programs as long as the individual is no longer using illegal drugs. In the case of alcohol use, an employer may not discriminate against an individual as long as current alcohol consumption does not interfere with job performance or pose a threat to co-workers or company property.

Simple demonstration of enrollment in a supervised rehabilitation program is not enough. Employers may also require reasonable assurance that no illegal drug use is currently occurring and institute reasonable policies or procedures, including drug tests that are in compliance with state testing and privacy laws, for verification. All information pertaining to an employee’s participation in a drug or alcohol abuse treatment program must be kept strictly confidential to prevent any discrimination.

What if I Suspect an Employee has a Drug or Alcohol Problem?

In the case of illegal drug use, whether newly discovered or resumed after rehabilitation efforts, an employer can initiate disciplinary actions, including dismissal.

If there is a suspicion of alcoholism, according to ADA guidelines, an employer should:

  • Inform the employee of available counseling services
  • Provide the employee with a "firm choice" 
  • If outpatient treatment fails, provide the opportunity for inpatient treatment

Barring any special circumstances, if these efforts fail, the employee can be discharged for any further relapse.

Disability is Not a Complete Protection from Termination

Drug or alcohol related disability protection does not protect an employee who is currently engaging in the illegal use of drugs or whose job performance is directly affected by alcohol use. Employers may discharge or deny employment to such individuals without liability for discrimination.

Do I Need an Attorney to Deal with Drug or Alcohol Related Disability Issues?

Like most other employment discrimination laws, the ADA is highly complicated.  In addition, there may be state laws that go beyond the ADA.  An experienced employment lawyer will be able to help you understand the law and assist you to develop an appropriate compliance program.