Drug and Alcohol Addiction: A Disability Under the ADA
Most employers have drug and alcohol free workplace policies. An employer can fire an employee for failing these tests or for using drugs and alcohol at the workplace, however, there are some situations in which an employee is protected. If an employee has an addiction problem and he is actively working to solve that problem, he may be protected under the Americans with Disabilities Act (“ADA.”) There are three specific scenarios under which an employee is protected under the ADA as a recovering addict.
If an employee has underwent rehabilitation and treatment for substance abuse, and she is no longer using any substances, she would be protected under the ADA. Such an individual is oftentimes referred to as a recovering addict. Without proof of continued substance abuse, an employer cannot fire or discriminate against such an employee just for having been an addicted to a substance in the past. If they do fire or discriminate against this person the employee would have legal recourse under the ADA.
Currently Participating in Rehabilitation
An employee who is currently engaging in a rehabilitation program is protected under the ADA, but only as long as they are not currently using drugs. If the employee is in a rehab program, but slips up and then fails a workplace drug test, the employer would be able to terminate that employee in line with a drug free workplace policy. This employee would not be able to turn around and sue under the ADA as the protection only exists if the employee is in the program and remains drug free during that time.
An Employee Erroneously Regarded as a Current Substance User by an Employer
This situation is a bit strange, but still common nonetheless. When an employer wrongfully regards an employee as a user of drugs or alcohol at the workplace, and then takes an adverse action against that employee, the employee is protected under the ADA. In plain English, if the employer believes that an employee is a substance abuser, but in reality the person is not, that person is entitled to the protections of the ADA. For example, if a rumor spreads that an employee was drunk at work and that he is an alcoholic, but it is a complete lie, the employee would have legal recourse if the employer then fired him based on those facts.
Generally, employees can be fired for using drugs and alcohol in the workplace, however, under certain limited circumstances they are afforded the protection of the ADA. If they are rehabilitated users, currently in rehabilitation, or erroneously regarded as being substance abusers, they can sue under the ADA for being fired. If you believe that you have been discriminated against on the basis of your substance abuse addiction, please contact Kraemer, Manes and Associates for a free consultation.