Human Resource E-Bulletin - April 2000

Drug and Alcohol Issues & the Americans with Disabilities Act


Drug and Alcohol Issues & The Americans with Disabilities Act

Who is protected?

  • Individuals currently engaged in the illegal use of drugs are not covered.
  • The ADA is not intended to protect current illegal activity.
  • Individuals who are erroneously perceived as being addicted to drugs are protected.**
  • Individuals with a history or record of drug addiction are protected by the ADA.**

These individuals are protected because Congress wanted to encourage individuals with chemical dependencies to pursue rehabilitation and recovery.

History or record of drug addiction means that these individuals must:

  • Have successfully completed a drug rehabilitation program;
  • Be currently participating in such a program, or
  • Be no longer engaging in the illegal use of drugs.


EEOC Interpretive Guidance clarifies what may be considered current use.  The guidance defines "current" drug use as use which is either current, in the literal sense, or fairly recent:

"The term 'currently engaging' is not intended to be limited to the use of drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather the provision is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct."  29 C.F.R. § 1630.3 app.

Illustrations: What is considered "current use"

In Colorado State Board of Medical Examiners v. Davis (6 NDLR  224)(Colorado Court of Appeals, 1995) the court held that the ADA does not apply to persons who are currently engaged in the illegal use of drugs, and the individual's history of illegal drug use, risk of relapse, and relatively short period of recovery supported the finding that continuing drug use was an ongoing problem." In this case the history was well-documented and dotted with periods of recovery and relapse.

Baustian v. Louisiana, 910 F. Supp. 274 (E.D. La. 1995), 7 NDLR  No. 159. An individual addicted to marijuana had been enrolled in a drug treatment program for seven weeks at the time he was allegedly terminated from his job.  The court ruled that he was a current drug user, thus not entitled to the protection of the ADA.

Wormley v. Arkla, Inc., 871 F. Supp. 1079 (E.D. Ark. 1994), 6 NDLR No. 40. An employee who was enrolled in a rehabilitation program was found to be a "current" user.

Montegue v. City of New Orleans, 8 NDLR Sect. 327 (E.D. La. 1996) An individual was able to establish that he had a disability under the ADA where he completed a certified substance abuse program more than one year prior to challenged adverse employment action.

  • Individuals with a history of being dependent on alcohol are covered.
  • Individuals who are currently dependent on alcohol are protected by the ADA.


These individuals may not be discriminated against simply on the basis of their status as alcoholics. However, these individuals  may be held to the same standards of conduct that others must meet in the workplace.

  • Casual users of drugs or alcohol are not protected by the Americans with Disabilities Act.  A record or perception of occasional, casual use of drugs or alcohol does not constitute a disability.

Illustration:  Drug Use Must be Addiction

In Montegue v. City of New Orleans (E.D.La. 1997, 10 NDLR  136) the plaintiff did not depict himself as an addict. "First, Montegue relied on his own description of himself as a 'functional addict.'" Montegue's own testimony was not corroborated by expert testimony on the meaning of the term "functional addict." There was no expert testimony that Montegue's past drug use constituted an addiction. Montegue did not present testimony on the drug treatment program he completed at Methodist Psychiatric Pavilion. On cross-examination of Montegue, the City attempted to elicit testimony from Montegue that his drug use was recreational, rather than habitual, and that Montegue's own mother lacked any knowledge of her son's drug use, implying that his drug problem could not be that serious."

  ** Individuals are not automatically covered simply because they have a record of alcoholism or the illegal use of drugs, or are  erroneously regarded as such, or engaging in such use. The record or perception that an individual was or is perceived as using  drugs or alcohol must show that that the individual had or was believed to have an addiction to drugs or alcohol.
 

Workplace Rules -- Alcohol and Drug Use

Employers may:

  • Prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees.
  • Require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace.
  • Require that employees comply with the mandates of the Drug-Free Workplace Act of 1988.
  • Hold employees who use illegal drugs or who are alcoholics to the same qualification standards for employment and job performance.
  • Apply conduct rules to individuals who use illegal drugs or alcohol in the same manner that they are applied to all other employees, even if the performance problems are related to the drug use or alcoholism.
  • Employers should be careful to apply drug and alcohol policies in a uniform manner:

Illustration: Universal Application of Policies

In Flynn v. Raytheon Company (868 F. Supp. 383 1994) (U.S. District Court, Massachusetts) the court held that the employer could terminate an employee who reports to work under the influence of alcohol.  However, in this case Raytheon enforced its disciplinary policy in a discriminatory manner. The plaintiff, Flynn, alleged that he was terminated "after only one incident while others who arrived at work intoxicated were allowed to keep their jobs. The discriminatory enforcement of a lawful policy is, of course, unlawful. It is well established that an employee can demonstrate unlawful discrimination, despite the fact that she was discharged for misconduct, if her employer treated her differently from other employees not within the protected class who also engaged in the prohibited conduct."

Special Application for Some Federal Agencies

The regulations specifically state that Department of Defense, Nuclear Regulatory Commission and the Department of Transportation employers may require that designated employees comply with standards relating to alcohol and drug use established for these agencies.

Drug Testing

  • The ADA does not prohibit or encourage drug testing.
  • Tests to determine the illegal use of drugs are not considered to be medical examinations.
  • Employers may test for illegal use of drugs at any stage of the employment process, including before an offer of employment is made.

Tests for illegal drugs may reveal the presence of drugs being taken legally to treat a disability.  However, employers must be cognizant of the prohibition against making medical inquiries or inquiries about the existence, nature or severity of a disability before extending a conditional job offer.

Because tests for illegal drugs often detect the presence of legal drugs, the House Report, part of the legislative history of the ADA, offers a solution.  It states that employers could avoid problems by giving drug tests after a conditional offer of employment is made.  Any pre-offer drug tests should be limited to testing for illegal drug use.

If an employer chooses to use pre-offer drug testing and an applicant tests positive for drug use, the EEOC has stated that employers "may validate the test results by asking the applicant about lawful drug use, which may have resulted in a positive result."

Employers should not reject potential employees automatically due to a positive drug test as the "positive" result could be due to the lawful use of a prescription drug, which the individual is taking because of a disability.  Automatic disqualification could violate the ADA.

Employers may not require current employees to disclose prescription drug use absent showing of job-relatedness and business necessity [Letter Re: Drug and Alcohol Policy, 10 NDLR  163 (EEOC 1996)]

Testing Employees Who Have a History of Drug Addiction

Employers may develop reasonable policies or procedures that include drug testing, to ensure that a former drug addict is no longer engaging in the illegal use of drugs.

"[D]rug testing, designed to ensure that [an individual formerly addicted to drugs] is no longer engaging in the illegal use of drugs, . . . shall not be a violation of [the ADA]." 42 U.S.C. § 12114(b)

Illustration: Testing Employees with a History of Addiction

In Buckley v. Consolidated Edison Company of New York, Inc. [(2nd Cir. 1998) 155 F.3d 150] the court looked at Con Edison's drug testing policies of employees with a history of drug addiction;

"Con Edison ordinarily subjects its employees who have not been identified as former alcohol or substance abusers to random drug/alcohol testing approximately once every five years. In 1991, Buckley was identified as an alcohol/substance abuser, and he underwent treatment at a residential facility. In 1993, he suffered a relapse and received additional treatment. As a result of his identification as an alcohol/substance abuser, Con Edison required Buckley to submit to random drug/alcohol testing approximately once every 25 days. The only suggestion in the amended complaint that Buckley was treated differently from Con Edison employees who were not former substance abusers comes from the allegations dealing with the frequency of testing, i.e., that Buckley was randomly tested once every 25 days and non-former-abusers were tested only once every five years. We think it clear, however, that the more frequent testing of employees who have been identified as former substance abusers is not prohibited."

Drug Testing Methods

The ADA does not recommend any type of drug testing method, but the House Report stated that test results should be accurate and encourage covered entities to follow the Mandatory Guidelines on Federal Workplace Testing as issued by the Department of Health and Human Services.

Note: The Department of Health and Human Services Mandatory Guidelines on Federal Workplace Testing Programs ("HHS Testing Guidelines"), 53 Fed. Reg. 11,970 (1988), only deals with urine tests.

Alcohol Testing and Inquiries

  • A test to determine whether an individual is currently under the influence of alcohol constitutes a medical examination.
  • Tests for alcohol may not be given prior to a conditional offer of employment.
  • Pre-offer questions regarding the amount of alcohol an applicant drinks are not permitted, because these questions are "likely to elicit information about the existence, nature, or severity of a disability" -alcoholism.
  • Testing current employees for alcohol use is prohibited unless it is job-related and consistent with business necessity. [Letter Re: Employment Applications, 9 NDLR  213 (EEOC 1996)]

Illustrations:

Testing any employee who violates a personnel rule or is involved in an accident violates the ADA because such conduct does not necessarily establish that the testing is job-related and consistent with business necessity. [Letter Re: Drug and Alcohol Policy, 10 NDLR  163 (EEOC 1996)]

Asking applicants to sign a certification stating that they agree to "submit to drug testing to detect the use of illegal drugs and alcohol at any time during employment" would violate the "job-related and consistent with business necessity" rule for alcohol tests.  Employers may test for current illegal use of drugs at any time because they are not considered medical examinations.  There must be a "business necessity" reason to test for alcohol use. [Letter Re: Employment Applications, 9 NDLR  213 (EEOC 1996)]

Testing for alcohol use may be a business necessity when an employee's behavior strongly suggests he is intoxicated at  work, especially when the employee's responsibilities include driving or operating machinery.

Reasonable Accommodation for Alcoholics and Those with a History of Drug Use

An alcoholic is entitled to the reasonable accommodation of a modified work schedule so they can attend AA meetings (they would have to make up that time) but they are not entitled to a flexible schedule to accommodate weekend drinking binges.  Similarly, an individual with a history of drug use would be entitled to time off to attend narcotics anonymous meetings.

References

The Statute

Sec. 12114 - Illegal use of drugs and alcohol

(a) Qualified individual with a disability:  For purposes of this subchapter, the term "qualified individual with a disability" shall not  include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis  of such use.

(b) Rules of construction:  Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a  disability an individual whom-

 (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or  has otherwise been rehabilitated successfully and is no longer engaging in such use;
 (2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or
 (3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this  chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing,  designed to ensure that an individual described in paragraph (1) or (2) is no longer  engaging in the illegal use of drugs.

  (c) Authority of covered entity:  A covered entity--

 (1) may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
 (2) may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the  workplace;
 (3) may require that employees behave in conformance with the requirements established under the Drug-Free Workplace Act of  1988 (41 U.S.C. 701 et seq.);
 (4) may hold an employee who engages in the illegal use of drugs or who is an alcoholic to 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 drug use or alcoholism of such employee; and
 (5) may, with respect to Federal regulations regarding alcohol and the illegal use of drugs, require that--

(A) employees comply with the standards established in such regulations of the Department of Defense, if the employees of  the covered entity are employed in an industry subject to such regulations, including complying with regulations (if any) that  apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Department of Defense);
(B) employees comply with the standards established in such regulations of the Nuclear Regulatory Commission, if the employees of the covered entity are employed in an industry subject to such regulations, including complying with regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Nuclear Regulatory Commission); and
(C) employees comply with the standards established in such regulations of the Department of Transportation, if the  employees of the covered entity are employed in a transportation industry subject to such regulations, including complying  with such regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of employees of the covered entity who are employed in such positions (as defined in the regulations of the Department of Transportation).

(d) Drug testing

(1) In general:  For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical  examination.
(2) Construction:  Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of drug testing for  the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.
(3) Transportation employees:  Nothing in this subchapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise  lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to--

 (1) test employees of such entities in, and applicants for, positions involving safety-sensitive duties for the illegal use of drugs and  for on-duty impairment by alcohol; and
 (2) remove such persons who test positive for illegal use of drugs and on-duty impairment by alcohol pursuant to paragraph (1) from  safety-sensitive duties in implementing subsection (c) of this section.

(Pub. L. 101-336, title I, Sec. 104, July 26, 1990, 104 Stat. 334.)

EEOC Title I Regulations

1630.16. - Specific activities permitted

(a) Religious entities
 A religious corporation, association, educational institution, or society is permitted to give preference in employment to individuals  of a particular religion to perform work connected with the carrying on by that corporation, association, educational institution, or  society of its activities. A religious entity may require that all applicants and employees conform to the religious tenets of such  organization. However, a religious entity may not discriminate against a qualified individual, who satisfies the permitted religious  criteria, because of his or her disability.

(b) Regulation of alcohol and drugs

A covered entity:

 (1) May prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
 (2) May require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
 (3) May require that all employees behave in conformance with the requirements established under the Drug-Free Workplace Act  of 1988 (41 U.S.C. 701 et seq.);
 (4) May hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for  employment or job performance and behavior to which the entity holds its other employees, even if any unsatisfactory performance  or behavior is related to the employee's drug use or alcoholism;
 (5) May require that its employees employed in an industry subject to such regulations comply with the standards established in  the regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear Regulatory Commission, regarding  alcohol and the illegal use of drugs; and
 (6) May require that employees employed in sensitive positions comply with the regulations (if any) of the Departments of Defense  and Transportation and of the Nuclear Regulatory Commission that apply to employment in sensitive positions subject to such  regulations.

(c) Drug testing

 (1) General policy
 For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination. Thus, the  administration of such drug tests by a covered entity to its job applicants or employees is not a violation of section 1630.13 of this  part. However, this part does not encourage, prohibit, or authorize a covered entity to conduct drug tests of job applicants or  employees to determine the illegal use of drugs or to make employment decisions based on such test results.
(2) Transportation Employees
 This part does not encourage, prohibit, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the  Department of Transportation of authority to:

(i) Test employees of entities in, and applicants for, positions involving safety sensitive duties for the illegal use of drugs or for on-duty  impairment by alcohol; and
(ii) Remove from safety-sensitive positions persons who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant  to paragraph (c)(2)(i) of this section.

(3) Confidentiality
 Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the  illegal use of drugs, except information regarding the illegal use of drugs, is subject to the requirements of section 1630.14(b)(2)  and (3) of this part.

To unsubscribe to the HR E-bulletin, or to subscribe to the general or legal E-bulletin, to ask a question or give a comment, please send an E-mail to swdbtac@ilru.org.  All questions are answered confidentially.

You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Southwest ADA Center at ILRU. We would greatly appreciate receiving a copy of your use of our material. Please send to:

Southwest ADA Center
2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
713-520-5785 (fax)
swdbtac@ilru.org