In 2018, 20.3 million Americans over age 12 had a substance use disorder (SUD), according to the National Center for Drug Abuse Statistics. Among those, 8.1 million had an alcohol use disorder (AUD), while 4.4 million had a marijuana use disorder. Also, according to the the Centers for Disease Control and Prevention (CDC), approximately 2.1 million Americans have an opioid use disorder (OUD), including heroin and dependency on prescription pain relievers. So are these millions of individuals protected by the Americans with Disabilities Act (ADA) in their employment?
Under the provisions of Title I of the 1990 American with Disabilities (ADA) Act, persons with an SUD are protected from employment-related discrimination — including during the hiring process.
ADA Title I applies only to "covered entities," or businesses with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. The law also applies to state and local government employers, as does the Rehabilitation Act of 1973 for federal and some private employers.
Title I of the Americans with Disabilities Act is usually enforced by the Equal Employment Opportunity Commission (EEOC).
Though it does not provide a specific list of conditions, the ADA defines a disability as (1) "having a physical or mental impairment that substantially limits one or more major life activities," (2) a person with "a record of such an impairment," or (3) "being regarded as having such an impairment."
Among persons with an SUD, who is ADA Title I protected?
- Job applicants or employees who have a valid prescription for opioid medications to treat a second (non-SUD) medical condition, such as pain. These include codeine, morphine, Oxycodone, hydrocodone, and meperidine;
- Individuals who are in a medication-assisted treatment (MAT) program for opioid addiction such as Methadone or Buprenorphine;
- Individuals with an SUD who are in recovery from previous substance use;
- Persons with alcohol use disorder (AUD) who drink legally (over 21);
- Persons who have a known relationship with an individual with an SUD, including a full- or part-time caregiver.
Among persons with an SUD, who is not ADA Title I protected?
Persons who use substances illegally — including those who consume alcohol before 21 — aren't protected. Medical and recreational marijuana use is legal in some U.S. states, but it is a controlled substance under federal law and, therefore, constitutes illegal use of substances.
ADA protection for job applicants with an SUD
In most cases, employers can only ask job candidates about their ability to perform specific or required job functions, as advertised or posted. Therefore, unless a candidate needs a reasonable accommodation in order to complete the employment application or the interview process, job applicants do not have to disclose their SUD to a prospective employer.
"If one does need an accommodation during the hiring process, one will need to disclose it at that time," says Kathy M. Flaherty, Executive Director of the Connecticut Legal Rights Project, Inc. (CLRP), a statewide non-profit agency which provides legal services to low income individuals with mental health conditions.
ADA protections for employees with an SUD
The regulations vary from state to state, but some employers must drug test potential and current employees as a safety or business necessity. The Federal Drug-Free Workplace Act of 1988 requires employers who receive federal grants to comply.
Many organizations publish their drug-free workplace policies and practices in employee handbooks, including the "for-cause" policies and procedures for when an employee is suspected to be using substances on the job, including the right to ask the employee to submit to a voluntary drug test. In some organizations, a refusal to test can be considered as a positive result.
"A company must protect all employees from harm, while also following labor union agreements for employment," says Anita Mullen, LMHC, CEAP, a certified employee assistance (EAP) provider and substance use professional (SAP) practicing in Massachusetts.
"Each workplace is different, but often, unless work performance is very obviously compromised, the employer needs to be cautious not to make accusations of on-the-job drug use."
Disclosing an SUD in the workplace
An estimated 20% of Americans or more are considered to have an invisible disability, including an SUD. Substance use is also a disability that carries considerable societal stigma.
"One of the biggest concerns from SUD patients is what will happen if their employer finds out they are battling addiction," says Robyn Hardy, Vice President of Corporate Development at ChoicePoint. "Thankfully, we've had the opportunity to work alongside members of Congress to progress this issue, and we are proud to say we are working to effectively end the stigma of recovering from addiction and offer protections to those in need."
"When it comes to disclosing a disability, there’s no obligation to disclose unless or until a reasonable accommodation is needed," says Ms. Flaherty of the Connecticut Legal Rights Project. "Unfortunately, there is still so much negativity and discrimination experienced by people who use substances or are in recovery from SUD, that I would not recommend disclosure if it’s not necessary."
However, if an employee knows that they will test positive for legally prescribed opioids, including those that are prescribed as part of a medication-assisted treatment program, the employee may opt to have a pre-emptive conversation with the employer or immediate supervisor.
Reasonable accommodations for persons with an SUD
Under ADA laws, most employers are required to make reasonable accommodations that would help an employee with a disability to apply for or perform a job, but only if the accommodations would not cause an employer undue hardship, such as significant difficulty and expense. The employer must objectively prove and document undue hardship.
For a person with an SUD, a reasonable accommodation might include adjustments to the work schedule to allow the employee to attend drug treatment or counseling or to participate in a 12-step or peer support group. Or it may include flexibility in taking sick or accrued or unpaid leave in order to enter or re-enter addiction treatment following a relapse.
Robyn Hardy of ChoicePoint added:
If you're batting cancer or battling addiction, I don't see a difference in this context. As an employer, we owe our employees support in their healthcare, regardless of the disease. The days of battling stigma are over — if you need help, let's work together and get you the proper help.
When and how an employee with an SUD should disclose their disability at work
Before making the request, employees should consult the employee handbook for the employer’s documented request procedures. The handbook may also list the documents that are required in order to support the employee’s request for a reasonable accommodation.
Generally, a request should be made before any workplace performance issues begin, and employees should maintain careful documentation of their request, including the date and time.
A doctor or counselor may make a reasonable accommodation request on the employee’s behalf.
What employees with an SUD can do to protect their ADA Title I rights
In cases of discrimination, complaints may be filed with the EEOC or with a designated state human rights agency. After an employee contacts their local EEOC field office to file a discrimination complaint, it is illegal for an employer to retaliate against that employee. To determine the timeline from discrimination to reporting, employees should check with their individual state or local agency or their EEOC field office.
Other supports for employees with a substance use disorder
The National Disability Rights Network is America’s largest providers of legal advocacy services for people with disabilities. Also, attorneys who specialize in employment law may support discriminated employees, as can statewide legal aid or protection and advocacy organizations.
- EEOC website: https://ww.eeoc.gov
- Phone: 1-800-669-4000
- 1-800-669-6820 (TTY)
- 1-844-234-5122 (sign language access line)