The ADA was drafted broadly to provide disabled Americans the opportunity for gainful employment. Congress recognized that some disabilities, by their nature, are special and pose safety risks. Drug and alcohol addiction are two such disabilities. The ADA requires employers to walk a fine line between enforcing reasonable workplace safety and behavioral rules and making accommodations for those who are addicted.
As a general rule, employers are allowed to enforce reasonable workplace rules against coming to work under the influence and against disruptive behavior, even if that behavior may be associated with an addiction to drugs or alcohol. That is, employers can punish inappropriate behavior and require that employees show up clean and sober.
The waters get murkier, however, when workers addicted to drugs or alcohol want to clean up their act. In some circumstances, you may be required to accommodate their attempts. In addition, they may be eligible for leave under the Family and Medical Leave Act. Under the ADA, what the employee is addicted to makes a difference in how much leeway you must provide as an employer.
The ADA does not protect current users of illegal (i.e., “street”) drugs. It does, however, protect those who’ve shaken their addiction sufficiently to no longer be classified as active illegal drug users. You should offer these workers reasonable accommodations to keep them on track: for example, time off for therapy, counseling and attending Narcotics Anonymous meetings or even inpatient care for related psychiatric problems like depression.
You can fire people who are current drug users even if their work isn’t suffering. Just be sure that the use in question is really “current.” The ADA specifies that a worker who is “currently engaged in the illegal use of drugs” isn’t covered by the law.
The EEOC has taken the position that “current” means “the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.” (29 CFR §1630.3)
The EEOC’s Technical Assistance Manual provides that “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 ongoing 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.”
So how long does it have to have been since the worker took drugs before the ADA protects him? What if your drug tests take three weeks to come back from the lab? Can he argue that any action you take against him three weeks later violates the ADA because he’s now a “former” drug user? The answer is unclear. Your best bet is to make sure that any action you take against him is based on his violation of an established workplace rule, not just the fact that he had a positive drug test.
The ADA covers workers who are alcoholics even if they currently drink. To be covered by the ADA, the alcoholic’s addiction must be severe enough to substantially impair a major life function such as taking care of himself. Many heavy drinkers may meet that test. That does not mean, however, that you have to tolerate alcoholics coming to work drunk.
Courts have consistently held that employers have the right to establish reasonable workplace rules, including coming to work clean and sober. For example, in Salley v. Circuit City, Inc., 160 F.3d 977 (3rd Cir.), a federal appeals court ruled that the retailer was well within its rights when it fired a manager who admitted to using illegal drugs with a co-worker, was absent due to recreational drug use and reported to work high. His behavior violated company policy. The court found no evidence that the drug user was singled out for special consideration: i.e., no evidence that non-addicted workers who broke the rules weren’t punished. Because the policies were facially neutral and impartially applied, the court upheld the firing.
Former drug users
How you treat a former drug user is more problematic. Some appeals courts have taken the position that you can’t have a blanket policy by which you refuse to hire anyone who has a history of drug abuse. In a recent decision, the U.S. Supreme Court considered whether a former addict was entitled to a second chance: an opportunity to be rehired.
Joel Hernandez worked for Hughes Missile Systems in Arizona for about 30 years, first as a janitor and then as a technician. In 1991 he flunked a drug test because he had done cocaine the night before. When confronted, he agreed to resign for violating company rules rather than being fired. He then received treatment. Three years later, he was clean and applied for a job with the company again. It refused to rehire him ostensibly because it had a policy against rehiring anyone who’d been fired or resigned for violating company rules. Hernandez sued, alleging that under the ADA he was entitled to preferential treatment. The 9th Circuit Court of Appeals agreed and concluded that workers who’ve recovered from addiction can’t be excluded from rehiring if the workplace rule they violated had been directly linked to their disability—in this case, coming to work under the influence.
The Supreme Court heard the case and sent it back to the appeals court to determine whether a reasonable jury might believe that the employer refused to rehire Hernandez because of his past drug use, and not due to the company’s blanket no-rehire policy. Hernandez couldn’t raise the question of whether the blanket no-hire policy has a disparate impact on disabled applicants because he hadn’t raised it in his original pleadings. The appeals court ruled that the case should go to trial. Raytheon v. Hernandez, 362 F.3d 564 (2004)
Employers dodged the bullet with this case, but they may not be so lucky next time. The Supreme Court didn’t rule on whether employees could bring disparate-impact lawsuits if employers implement policies that harm disabled workers more than nondisabled workers.
Recommendation: To avoid being a test case, examine all of your blanket policies to determine if they disparately harm the disabled or any other protected group.
To protect yourself from lawsuits by former addicts, follow these guidelines:
• Set job-related rules against coming to work under the influence of drugs or alcohol.
• Establish behavioral rules such as demanding punctuality and regular attendance, allowing for appropriate FMLA absences.
• Apply the rules consistently. That is, if you fire someone who comes to work high, you should terminate those who show up drunk. In both cases, you’re punishing behavior (intoxication), not a disability (alcoholism or addiction).
• Keep records of whom you discipline and why. Review how you discipline workers who violate your rules with an eye toward identifying patterns. For example, see if you’ve disciplined those who come to work late because of an addiction more harshly than those who show up late for other reasons such as “traffic” or “car trouble.” Remember, a neutral rule created for a valid business purpose, applied evenhandedly, will stand up in court.
Recreational drug use or binge drinking
Not everyone who uses drugs (legal or illegal) or drinks alcohol is disabled. Remember, to be a disability, a condition must substantially limit a major life activity. A worker who sometimes smokes marijuana or a social drinker who sometimes is hung over on Monday is probably not disabled. Neither is covered by the ADA or needs to be accommodated.
In fact, you should enforce all workplace rules against these workers. The reason is simple: If you go easy on weekend drinkers or drug users when you catch them and then land heavily on the true addict, you may create an ADA case. You would, in effect, be applying your neutral policy (“Don’t come to work under the influence”) to the disadvantage of the disabled addict. Define the crime, and then make sure everyone who breaks the rules does the time.
