In a lawsuit filed earlier this month in Tennessee, the U.S. Department of Justice alleged that the employer violated the Americans with Disabilities Act by failing to provide reasonable accommodation and constructively discharging an employee because of his opioid use disorder (OUD).

The employer had a policy prohibiting employees from “possessing. . .or having controlled substances. . .or any other mind altering or intoxicating substance present in their systems while at work or on duty.” Despite the employee having a valid prescription for medication assisted treatment (MAT), the employer forced the employee to take unpaid leave until taken off the prescription and passing a drug test. Eventually, the employee was forced to resign after his doctor recommended that he resume his MAT to treat his OUD.

As with many mental health conditions, employers often overlook drug addiction and alcohol addiction as potential disabilities protected by state and federal law. As with all disabilities in the workplace, employers should address the employees and their situations on a case-by-case basis.

Is the addiction covered by the Americans with Disabilities Act?

It depends. Generally, alcoholism is considered a disability under the ADA. Use of medically prescribed controlled substances may be protected in some cases. Illegal drug use, however, is not protected. To qualify for protection under the ADA, a person addicted to drugs must no longer be using drugs illegally and be receiving treatment or have been successfully rehabilitated.

If the addiction is a disability, is there a duty to accommodate?

Yes. As with any disability, the ADA requires employers to engage in the interactive process with qualified individuals (i.e., individuals who can perform the essential functions of the job with or without reasonable accommodation).

Employers should know there are no “magic words” the employee needs to use to request an accommodation. Something as simple as a request for leave for treatment or voluntary disclosure of prescribed medication assisted treatment could put the employer on notice of the disability and potential need for accommodation.

How do I accommodate an employee’s alcohol or drug addiction?

As mentioned above, disabilities should always be approached on a case-by-case basis. The key is for employers to work with the individual to identify a reasonable accommodation that will enable the individual to perform the essential functions of the job.

Employers do not have to accommodate the addiction itself (e.g., allowing the employee to use drugs or alcohol in violation of the employer’s policies, excusing performance or behavior deficiencies due to the drug or alcohol use, etc.), but should consider other reasonable accommodations such as time off for treatment. Substance abuse policies should not be overly restrictive that would prohibit an employee from taking medication as prescribed by a medical professional, and employers should engage in the interactive process if an employee tests positive for a controlled substance and/or voluntarily discloses prescribed use.

The undue hardship analysis will also still apply, so employers are not required to grant the individual the requested accommodation if it would pose an undue hardship for the employer.

Are drug and alcohol tests considered medical exams under the ADA?

Maybe. Under the ADA, employers are allowed to prohibit the illegal use of drugs and the use of alcohol at the workplace and require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace. Drug and alcohol tests may be considered medical exams, therefore, such testing should be job related and consistent with business necessity. As a reminder, medical records should not be kept in an employee’s personnel file. It may be helpful to review the Equal Employment Opportunity Commission's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

Additionally, Hawaii law requires employers to provide specific information when requesting an applicant or employee to undergo a medical exam. For more information, HEC members may access our whitepaper here.

Employers should also consider implementing reasonable suspicion and post-accident testing policies, if appropriate.

What is not protected by the ADA?

While the ADA offers broad protections for individuals with disabilities, it does not protect everything. Individuals who are actively using illegal drugs are not protected by the ADA. Additionally, accommodations intended to allow the employee to consume drugs or alcohol are not required.

Employers often become aware of an employee’s addiction when addressing performance of misconduct issues. For example, when addressing an employee’s chronic tardiness, the employee may explain that they overslept due to drinking heavily the night before. Employers are not required to excuse the tardiness prior to learning of the employee’s alcohol use, nor are they required to change the employee’s schedule or allow the tardiness to continue.

What should I do if an employee has a substance abuse problem?

How employers respond to employees who abuse drugs or alcohol varies widely, and depends on several factors including, but not limited to:

• Company culture;
• Internal company policy;
• The employee's position;
• Industry and applicable industry-specific regulations;
• The employee's prior efforts at rehabilitation; and 
• The employer's ability to provide accommodations.

HEC members can contact their HR Consultant  or call our hotline at 808-836-1511 to review their substance abuse policy or for guidance on specific situations.