Alcohol and Drug Abuse and the ADA

Protective Coverage of the ADA

The ADA is the Americans with Disabilities Act, passed in 1990. It is omnibus legislation designed to enhance the lives of and protect the rights of disabled citizens. The statutes cover a wide range of issues such as job discrimination, building access, public transportation access, medical coverage and daily living needs. This section covers the impact of the ADA on alcohol and drug users.

Employees or job applicants who currently engage in substance abuse are not protected by the ADA. Sober individuals who are "in recovery" are classified as "qualified individuals with disabilities" and are protected by the Act. The Act covers and provides protection from job discrimination for people who:
"Complete supervised drug rehabilitation programs successfully…or who are otherwise successfully rehabilitated and are no longer engaged in such drug use; are participating in supervised rehabilitation programs and are no longer engaging in such use, or…are erroneously regarded as engaging in illegal drug use."

Limitations

A job applicant does not have a covered impairment solely due to past drug use. Former usage is a covered disability only if the drug dependency was serious enough to impair one or more major life activities.

An alcohol user is not precluded from coverage by the Act, since only current users of illegal substances are outside the protection. However alcoholics may be terminated for behavior that would be unacceptable from any employee.

Drug testing of former substance abusers is permissible at the job site. However the Act is neutral on the use of drug tests to make employment decisions. The Act does not interfere with the Department of Transportation program of random testing for safety-sensitive duties such as truck drivers, bus drivers and other transportation employees and the Department's right to force violators off the job and into either rehabilitation or unemployment.

Authorizations

• The ADA authorizes a number of actions employers may take to prevent on-the-job substance abuse. Employers may:

• Ban usage of all alcohol and illegal drugs at the workplace.

• Require that employees not be under the influence of alcohol or drugs while at work.

• Hold employees with drug and alcohol problems to the same performance standards in place for other employees, even if performance is affected by the substance abuse problem.

• The Act does not preclude smoking restrictions.

The ADA also authorizes compliance requirements regarding alcohol and drug use established by the Defense Department for employees and employees in sensitive private defense industries. It provides similar authorization for the standards established by the Nuclear Regulatory Commission, presumably for employees at nuclear-related work sites; and for the Department of Transportation as mentioned previously.

Employer's Protection

The Supreme Court has held that an employer may refuse to rehire a former employee who was terminated for violating workplace rules, specifically finding that this policy is non-discriminatory. The only relevant question in this situation is whether the stated reason, or misbehavior, provided adequate pretext.

Employers may offer return-to-work agreements to former employees who were terminated with substance abuse problems. Such agreements may impose conditions for employment that differ from the requirements of other employees. Courts have found no disability discrimination to be inherent in such agreements.