Are Workers With Substance Abuse Issues Protected Under the ADA and the FMLA?

July 25, 2016

Alcohol is the most commonly used addictive substance in the United States, with an estimated 17.6 million Americans suffering from alcohol abuse, according to the National Council on Alcoholism and Drug Dependence. It’s also estimated that 4.2 million Americans are dependent on or abuse marijuana. Based on those numbers, there’s a significant likelihood that one of your coworkers or employees has a substance abuse problem. This article discusses the general legal requirements under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) for employees with substance abuse problems.

Protections Under the ADA

Individuals suffering from alcoholism are protected under the ADA if they can perform their job duties safely and effectively. The ADA allows an employer to hold an employee with alcoholism to the same qualifications and job performance standards as other employees. Therefore, you may discipline an employee who currently abuses alcohol and doesn’t perform his job effectively.

For instance, there is nothing to prevent you from disciplining or terminating an employee who is frequently absent because of his alcohol abuse. The only caveat to this rule is that you must hold alcoholic employees to the same disciplinary standards as other employees.

An employee with alcoholism is entitled to a reasonable accommodation if he is participating in a treatment program and isn’t currently abusing alcohol. A common reasonable accommodation is a leave of absence to allow the employee to attend a rehabilitation program or a modified schedule to allow him to participate in such a program. If an employee informs you that he is an alcoholic, you should work with him to see if there’s an appropriate accommodation that would allow him to seek the appropriate treatment for his alcoholism.

By contrast, an individual who is currently using illegal drugs typically isn’t protected under the ADA. For instance, a drug test that shows an employee is using illegal drugs bars him from the ADA’s protections. Again, you are allowed to hold employees to the performance standards applicable to their jobs regardless of any substance abuse problems they have. And you clearly can prohibit the use of drugs in the workplace and require that employees not be under the influence of any drugs in the workplace.

The ADA doesn’t prevent employers from testing applicants or employees for current illegal drug use or from making employment decisions based on verifiable drug test results. A test for the illegal use of drugs isn’t considered a medical examination under the ADA. However, an individual with a past drug problem who is no longer using drugs illegally is protected under the ADA if he has completed or is participating in a supervised rehabilitation program. The difficult part for employers is determining what constitutes “current drug use.”

The Equal Employment Opportunity Commission’s (EEOC) Technical Assistance Manual defines “current drug use” as the “illegal use of drugs that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem.” Unfortunately, the EEOC and the courts have not promulgated a clear-cut rule to define current drug use. Thus, it’s imperative to carefully consider an employee’s recent drug use and enrollment in a rehabilitation program when you’re determining if the employee should be terminated.

Protections Under the FMLA

Leave under the FMLA may be taken for treatment of alcoholism or substance abuse only in accordance with the instructions of a healthcare provider. The FMLA does not apply to absences caused by drug or alcohol use outside of treatment. In other words, an employee isn’t permitted to take FMLA leave simply because he is an alcoholic and cannot make it to work. On the other hand, an employee may take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

Determining what constitutes treatment for substance abuse versus abuse of the substance isn’t an easy task. In Picarazzi v. John Crane, Inc., an alcoholic employee had attendance problems and informed his employer that he needed to attend a rehabilitation program. The employer agreed that he could take 12 weeks of leave under the FMLA to attend the program. However, during the 12-week period, the employee suffered relapses and didn’t consistently participate in treatment. As a result, the employer terminated him, reasoning that his absences didn’t qualify for FMLA leave because he wasn’t actively participating in the rehabilitation program. The court disagreed and held that to be eligible for FMLA leave, the employee didn’t have to be under the care of a physician or enrolled in a rehabilitation institute for each day he was on leave. This decision illustrates the difficulty in determining whether an employee is entitled to FMLA leave when he seeks treatment for substance abuse.

Bottom Line

There is nothing in the ADA or the FMLA that prevents an employer from terminating an employee who has performance or attendance problems because he is an alcoholic or a drug addict. However, an employee who seeks treatment for substance abuse is entitled to leave under the FMLA and a reasonable accommodation under the ADA. To minimize liability, you should consult with legal counsel before taking an adverse employment action against an employee who has substance abuse problems.

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This article, slightly modified to note recent updates, was featured in the May 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Are Workers With Substance Abuse Issues Protected Under the ADA and the FMLA?," contact Justin H. Lessner at jlessner@axley.com or 608.283.6761.