Ada Technical Assistance Manual Title I

Ada technical assistance manual title i

Chapter 4. Substance Abuse under the ADA.

ADA TECHNICAL ASSISTANCE MANUAL ADDENDUM

Title I of the Americans with Disabilities Act [3] specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other federal laws and regulations regarding drug and alcohol use. At the same time, the ADA provides limited protection from discrimination for recovering drug abusers and for alcoholics.

The following is an overview of the current legal obligations for employers and employees:. An employer may not discriminate against a person who has a history of drug addiction but who is not currently using drugs and who has been rehabilitated. An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.

ADA Title III Technical Assistance Manual

It is not a violation of the ADA for an employer to give tests for the illegal use of drugs. An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.

Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.

Employees may be required to follow the Drug-Free Workplace Act of and rules set by federal agencies pertaining to drug and alcohol use in the workplace. The courts have been reluctant to set out specific time periods, and this is an area that has caused a great deal of concern. If an individual tests positive on a drug test, he or she will be considered a current drug user, so long as the test is accurate. For example, in Zenor v. El Paso Healthcare Systems, Ltd.

In Salley v. Circuit City Stores, Inc. In Shafer v. Preston Memorial Hospital Corp. A question sometimes arises as to whether a drug addicted employee who breaks the company rules can, before being disciplined, enroll in a supervised drug rehabilitation program, and then claim ADA protection as a former drug addict who no longer illegally uses drugs. In her testimony before the Commission, Nancy Delogu stated:.

Ada technical assistance manual title i

It is causing great difficulty for employers to determine exactly when they may take discipline against an employee who may have had a disciplinary problem, tests positive or admits to a substance abuse problem, comes into rehabilitation for maybe 30 days. A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation.

For example, in Collings v. Longview Fibre Co. Reasonable Accommodation for Drug Addicts.

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The duty to provide reasonable accommodations to qualified individuals with disabilities is considered one of the most important statutory requirements of the ADA. This would generally involve a modified work schedule so the employee could attend Narcotics Anonymous meetings or a leave of absence so the employee could seek treatment. Individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic.

For example, in Williams v. Some courts have questioned whether alcoholism should automatically be designated as a covered disability. For example, in Burch v.

Ada technical assistance manual title i

United Airlines, Inc. As the Court explained in Sutton :. Second, because subsection A [of 42 U. Even though courts may determine that alcoholism is a covered disability, the law makes it clear that employers can enforce rules concerning alcohol in the workplace.

Ada technical assistance manual title i

The ADA provides that employers may:. However, an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct. For example, if an alcoholic employee and a non-alcoholic employee are caught having a beer on the loading dock, the employer cannot fire the alcoholic employee while giving the other employee only a written warning.

The Americans with Disabilities Act

Raytheon Co. It held that even though an employer can enforce its rules against intoxication on the job, it could not selectively enforce its rules in a way that treats alcoholics more harshly. Reasonable Accommodation for Alcoholics. In Schmidt v. Safeway, Inc. The ADA does not require an employer to provide an alcohol rehabilitation program or to offer rehabilitation in lieu of disciplining an employee for alcohol-related misconduct or performance problems. Moreover, an employer is generally not required to provide leave to an alcoholic employee if the treatment would appear to be futile.

For example, in Schmidt v. Frank , [69] the court held that the employer was not required to give an alcoholic employee another leave of absence when alcohol treatment had repeatedly failed in the past. Finally, an employer generally has no duty to provide an accommodation to an employee who has not asked for an accommodation and who denies having a disability.

In Larson v. Koch Refining Co. Blaming Misconduct on Alcoholism. Courts routinely hold that employees cannot blame misconduct on alcoholism. For example, in Renaud v. Wyoming Department of Family Services , [73] the court noted that even if alcoholism is assumed to be a disability, the ADA distinguishes between alcoholism and alcoholism-related misconduct. In Labrucherie v. Regents of the University of California , [76] the court stated it was not discriminatory to fire an employee because he was incarcerated after his third arrest for drunk driving.

Likewise, in Maddox v. University of Tennessee , [79] the university fired an assistant football coach after his third arrest for drunk driving. It is clear that an employer does not, as a reasonable accommodation, have to forgive misconduct because the misconduct resulted from alcoholism.

Americans with Disabilities Act - A Guide to Title I Employment

In Flynn v. The risk can only be considered when it poses a significant risk, i.

Ada technical assistance manual title i

EEOC v. Exxon Corporation. In EEOC v.

Ada technical assistance manual title i

The U. District Court found that the ADA permits an exception to the individualized assessment ordinarily required under the law. In its appeal, the EEOC relied on its Interpretive Guidance to argue that employers must meet the direct threat defense:. Nancy Delogu, counsel to the Institute for a Drug-Free Workplace, said it was important to resolve the issue.

Technical Assistance Manual for Title I of the ADA

She testified:. Alcoholism and substance abuse are chronic conditions for which the risk of relapse cannot be well. And for certain very, very highly safety-sensitive positions, those which have no. Collins testified:. It certainly is my position based on my experience and the research done within Chevron and at other similar oil companies who have tightly structured employee assistance programs that, in fact, you can return individuals to highly safety-sensitive positions and not expose the company to increased risks of accidents or errors in judgment.

But that is premised on having a rigorous follow-up program [which involves weekly follow-up testing]. The Exxon case suggests that an employer should carefully consider the context in which medical guidelines will be used; i. I think some employers have an overly broad view of what a safety-sensitive position is and have.

And I think that these policies are not substantiated by the scientific evidence and I think are directly counter to the purposes of the ADA.

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Rothstein referred to the case of Knox County Education Association v. Knox County Board of Education. In Knox County , the Sixth Circuit upheld the drug testing of school personnel, including principals, teachers, aides, secretaries, and bus drivers, on the ground that because these individuals play a unique role in the lives of children, all the positions were deemed to be safety sensitive, including the people who worked in the office.

Rothstein testified:.

Ada technical assistance manual title i

That strikes me as not being based on any good facts or any good policy. Rothstein has said with regard to the issues of employers overly expanding the list of safety-sensitive jobs to which people are rejected from blanketly. An employer may make certain pre-employment, pre-offer inquiries regarding use of alcohol or the illegal use of drugs.

After a conditional offer of employment, an employer may ask any question concerning past or present drug or alcohol use as long as it does so for all entering employees in the same job category.

Introduction

An employer may conduct tests to detect illegal use of drugs. Drug tests are not considered medical examinations, and an applicant can be required to take a drug test before a conditional offer of employment has been made.

An employer may refuse to hire an applicant or may discharge or discipline an employee based upon a test result that indicates the illegal use of drugs. The employer may take these actions even if an applicant or employee claims that he or she recently stopped illegally using drugs. Tests for illegal use of drugs also may reveal the presence of lawfully used drugs, i.

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Nancy Delogu told the Commission:. With drug abuse in the workplace and the number of individuals who are subject to drug testing, anyone who ever has a positive drug test, theoretically, can claim to be perceived as disabled by his or her employer or would-be employer. As a result, many cases have been brought, and many which are quite frivolous based on a positive drug test.

To avoid such potential liability, the employer would have to determine whether the individual was using a legally prescribed drug. Since applicants who test positive for illegal drugs are not covered by the ADA, an employer can withdraw an offer of employment on the basis of illegal drug use.

This is a problem that can be avoided very simply by employers who defer drug testing until the post-offer stage, that is the pre-placement stage when there are no restrictions on inquiries regarding medical conditions or substances that could cause cross-reactivity. If the results of a drug test indicate the presence of a lawfully prescribed drug, such information must be kept confidential, in the same way as any medical record.

If the results reveal information about a disability in addition to information about drug use, the disability-related information is to be treated as a confidential medical record.