Earlier this year Massachusetts Governor Charlie Baker signed a comprehensive law intended to combat the state’s opioid addiction epidemic. In recent years, opiate abuse has claimed thousands of lives in Massachusetts. Unfortunately, addiction is not limited to opiate abuse, and many employers know first hand the unique challenges addiction and drug and alcohol abuse and addiction pose in the workplace.
Title I of the Americans with Disabilities Act, and Massachusetts law specifically permit employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol. At the same time, the ADA and state law provide limited protection from discrimination for recovering drug abusers and for alcoholics. This tension leaves employers faced with the dual task of addressing workplace addiction and avoiding the threat of a discrimination lawsuit.
Here is a brief summary of the current state of the law as related to drug and alcohol abuse and addiction:
- An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace, and employees may be required to follow the Drug-Free Workplace Act of 1988. At this time, the prohibition may include marijuana and medicinal marijuana.
- An employee who is currently engaging in the illegal use of drugs is not an “individual with a disability” under the ADA or Massachusetts law.
- Employers who test for the illegal use of drugs are not in violation of the ADA, but must comply with state drug testing laws.
- Employers may terminate or deny employment to those currently engaged in the illegal use of drugs.
- Employees who use drugs or alcohol can and should be required to meet the same standards of performance and conduct as other employees.
- Employers may not discriminate against those with a history of drug addiction provided the individual is not using drugs and is actively engaged in rehabilitation.
- Employers may not discriminate against alcoholics. However, this protection does not extend to employees who are currently abusing alcohol.
When are drug users protected by the ADA and state discrimination laws?
An employee who is “currently engaging” in the use of illegal drugs is not entitled to protection under the ADA and state disability laws. Employers that consistently enforce workplace rules prohibiting employees from illegally using drugs, and disciplining employees who violate the policy will not be in violation of the ADA.
Where the law in this area can get tricky is that individuals who are undergoing treatment for drug and/or alcohol abuse are protected by the ADA. Specifically the ADA protected individuals:
- who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
- who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
- who are regarded, erroneously, as illegally using drugs.
Additionally a former drug addict may be protected under the ADA because the addiction may be considered a substantially limiting impairment. However, according to the EEOC Technical Assistance Manual on the ADA, a former casual drug user is not protected:
[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be “substantially limited” because of drug use, s/he must be addicted to the drug. The EEOC Technical Assistance Manual can be found here.
Alcoholism as a Disability
Alcoholism is a recognized disability under both Massachusetts law and the ADA. Individuals regarded as alcoholics, and those with a record of alcoholism, may be considered disabled.That means that if an employee comes to you and tells you that he or she needs to get help or take time off for an AA meeting, an employer should respond the same as any other request for accommodation under the ADA or state law. Furthermore, if the employee is in fact an alcoholic, treating him or her differently from other employees could expose an employer to a discrimination claim under state and/or federal law. Under Massachusetts law:
An employer may only subject an addicted individual to discipline, including termination, if the employer would subject a non-handicapped individual to similar discipline for similar misconduct; and an employer may not treat the misconduct of an addicted employee more harshly than it would the misconduct of a non-handicapped individual. Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § X.D (1998). Furthermore, an employer must provide reasonable accommodation to individuals handicapped as a result of their addiction to alcohol where such accommodation permits them to perform the essential functions of the job, unless such accommodation creates an undue hardship. Id.
Brief Overview of the American With Disabilities Act (ADA)
The ADA prohibits discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, an employer must accommodate employees or applicants who request accommodation for a disability unless accommodation would create an undue hardship. The ADA also permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” The defense of “direct threat” is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”
In all cases, the determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job. In determining whether an individual poses a direct threat, the factors to be considered include:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
It is important to note that the EEOC has emphasized that an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”
- The ADA requires an individualized assessment of every disability and request for accommodation. There is no one size fits all approach that can be applied in every situation. With each employee and each request for accommodation, the employer should engage in an interactive dialogue with the employee or applicant.
- Discrimination has been found in cases where employers require routine testing in response to an employee self-disclosing as an alcoholic when other employees were not required to submit to the same routine testing. As such, unless it is your policy that all employees submit to routine testing, you may not require it of this employee.