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Rules of the road regarding chemically dependent job applicants and employees

The Americans with Disabilities Act of 1990, as Amended, 42 U.S.C. § 12101 et seq. (the "ADA") generally applies to those employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 42 U.S.C. § 12111(5)(A). Thus, most employers, of any meaningful size, must be cognizant of the requirements of the ADA. For those employers currently under the 15-employee threshold, but with realistic ambitions for growth above that line of demarcation, they can expect to be soon governed by the ADA's provisions and thus should be aware of its proscriptions as well.

A particular challenge for many employers is dealing with the job applicant or current employee whom the employer suspects of possible abuse of drugs or alcohol. Fortunately, although the ADA is a complicated statute with an ever burgeoning body of case law, there actually is reasonable clarity and some bright line rules that employers can follow to be sure they do not wander off the road from what is permissible.

The first issue to consider is who, of the universe of persons who have suffered from the abuse of drugs and alcohol, or who are currently still suffering, are even entitled to protection under the ADA. The rules are quite clear. An individual (applicant or employee) who is currently engaged in the illegal use of drugs is not protected against discrimination under the ADA. 42 U.S.C. §§ 12114(a), 12110(a) and 12113(a) and (b). On the other hand, the following categories of applicants and employees are protected from disability discrimination under the ADA: (1) those who have successfully completed drug rehabilitation or are otherwise rehabilitated and are no longer using drugs illegally; (2) those who are participating in a supervised rehabilitation program and are no longer using drugs illegally; (3) those who are erroneously regarded as using drugs illegally, but are, in fact, not doing so; and (4) those with a current alcohol dependence problem who can perform the essential functions of their job sought or held and who does not present a direct threat to the health or safety of other individuals in the work place. 42 U.S.C. §§ 12114(b), 1211(8) and 12113(a) and (b).

The next issue, assuming a person is covered by the ADA, is what is the employer prohibited from doing? Like all persons subject to the ADA, a covered employer cannot discriminate regarding job application procedures and hiring including inquiring into the nature or severity of a disability prior to employment or prior to making a conditional job. 42 U.S.C. § 12112(C)(2). That means an employer cannot ask about drug or alcohol problems in the past or currently prior to making an offer of employment.

Once an individual has been hired, a covered employer may not discriminate against a qualified individual with a disability on the basis of the disability with regard to advancement, or discharge, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Nor may an employer fail to make reasonable accommodations unless doing so would cause an undue hardship. 42 U.S.C. § 12112(b)(5).

So what can an employer to do to avoid making poor hiring decisions and to ensure a productive and safe workplace? First, employers may certainly establish qualification standards and criteria that are job related. Second, employers may make pre-employment inquiries in the ability to perform job-related functions. Third, once the employer has made an offer of employment, the employer may require a medical examination including a drug test. Fourth, an employer may, and should, establish workplace rules relating to the use of drugs and alcohol. Finally, as may be appropriate, the employer may conduct drug tests in the workplace in compliance with applicable federal and state laws. The employer needs to be careful that any drug testing policies are carefully thought through, especially if the employer seeks to conduct random drug testing, because both federal and state laws have complicated statutory schemes governing drug testing that have traps for the unwary.

Although employers have no obligation to accommodate ongoing users and abusers of drugs, they do have an obligation, in most cases, to attempt to accommodate alcoholics who seek reasonable accommodation to recover from their illness. The most common reasonable accommodations are: (1) use of paid or unpaid leave for treatment; (2) a flexible work schedule to attend treatment or AA meetings or counseling; and (3) allowance for longer or more frequent breaks.

Importantly, courts have held that an employer is not required to give a leave of absence for an alcoholic to get treatment if treatment would appear to be futile. Moreover, the ADA's legislative history suggests that an employer does not have to provide, as a reasonable accommodation, an opportunity for rehabilitation for an employee that has violated workplace alcohol rules. Finally, an employer never has to provide an accommodation that "enables" the individual's addiction (e.g., flexible schedule to accommodate weekend drinking binges).

In summary, all employers must be cognizant of the intersection of the requirements of the ADA and issues of drug and alcohol addiction. However, upon isolating the malady afflicting a particular employee, the statute and case law that has emerged is quite clear about the options available to the employer. Whether the policy is correct is an open question subject to public debate, but employers can clearly can deal much more harshly with active drug users and feel confident of limited repercussions under the ADA if the employer chooses to terminate such individuals for drug use. By contrast, employers need to be much more careful with how they deal with active alcoholics in their ranks. Such persons definitely are entitled to a reasonable accommodation for their affliction to allow them a chance at recovery. Failing to provide such an opportunity could result in easily avoidable ADA liability for the employer.