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Employment Discrimination and Alcohol and Drug Use

posted on Tue, Sep 1 2015 12:34 pm by The Network for Public Health Law

The Network was recently contacted for information on how the use of alcohol and the use of drugs are treated differently under employment and anti-discrimination laws.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act both include provisions explicitly addressing illegal drug use, as defined by the Controlled Substances Act, and unambiguously indicate that an individual currently engaging in illegal drug use is not entitled to the protection afforded by those laws. While current users of illegal drugs are excluded from the protections of the laws, current alcohol users have some protections.

Courts have consistently found that alcohol use may qualify an individual for protection under either the ADA or Rehabilitation Act. Therefore, alcohol use is treated like any other mental or physical disability under the laws, and may be deemed a disability if it substantially limits a major life activity.

Once an employee is considered to have a qualifying disability, the employer is required to provide reasonable accommodations unless those accommodations result in an “undue hardship” to the employer. In some cases, this reasonable accommodation will take the form of unpaid leave to allow the employee to attend rehabilitation. As stated, the employer will generally be required to allow such time off to attend rehabilitation so long as it does not cause an undue hardship. Whether such an accommodation is “reasonable” or causes the employer an “undue hardship” is very fact-specific and requires a case-by-case analysis.

There are limited exceptions to this general rule, such as when an individual is under the influence of alcohol while at work or where the employees’ alcohol use violates “the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the … alcoholism of such employee.” This means that an employer cannot use an employee’s alcohol use disorder itself as the basis to take adverse action against the employee or to punish that employee more severely than they would an employee without such a disorder. However, the employer may take such action if, based on a general policy applicable to all employees, the alcohol use disorder makes the employee unable to perform his or her job duties.

Finally, an employee may in some instances be entitled to unpaid leave to attend rehabilitation for an alcohol use disorder under the Family and Medical Leave Act (FMLA). As with most laws, there are various intricacies and exceptions to this rule. The FMLA also provides employees with narrower protection than the ADA and Rehabilitation Act.

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