Know Your Rights: The Americans with Disabilities Act and Addiction

The Americans with Disabilities Act provides many safeguards for working yet disabled Americans. Yes, that includes those who are suffering from alcoholism. It also includes people who are in recovery from opioids or other drugs.

Here’s how the ADA protects people who are battling addiction.

The Americans with Disabilities Act: Addiction, Recovery and Employment

The Americans with Disabilities Act (ADA) considers addiction to be a disability because it is an impairment that affects brain and neurological functions. However, the ADA considers alcohol addiction to be a disability whether alcohol use is in the present or in the past. On the other hand, drug addiction (be it opioid or otherwise) is classified as a disability only to those who no longer engage in illegal drug use. In other words, people in active recovery.

The ADA addresses addiction to alcohol, illegal drugs, and the unlawful use of legal drugs from application and interview, through job offer and pre-employment, to on the job itself. The goal is to ensure that people with disabilities — including people with drug and alcohol addiction — have the same rights and opportunities as everyone else. These protections also apply to people who experience prescription drug use disorder and opioid use disorder.

According to the Fact Sheet, the ADA prohibits discrimination against a “qualified person with a disability.” In all stages of employment. A qualified person with a disability is a person who possesses the skills, experience, and education necessary to successfully perform a job’s “essential functions” with or without reasonable accommodation (e.g. a schedule change, leave to attend AA/NA meetings or treatment at a rehabilitation program). This applies to private employers with 15 or more employees, as well as all state and local governments. (State non-discrimination law sometimes covers private employers with less than 15 employees.)

Definition of Disability

The ADA defines a person with a disability as:

• A person who has a physical or mental impairment that substantially limits one or more major life activities (e.g. someone with bipolar disorder, diabetes or addiction to alcohol)
• A person who has a history of an impairment that substantially limited one or more major life activities (e.g. someone who is in remission from cancer or someone in recovery from the illegal use of drugs)
• A person who is regarded as having such an impairment (e.g. an employer assumes an employee has an addiction to drugs — whether or not the person actually has an addiction — and takes a negative employment action based on that belief, such as refusal to promote, a poor performance rating, or termination)

*Major life activities include, but are not limited to: walking, seeing, caring for oneself, learning, working, thinking, communicating and also the operation of bodily functions, such as neurological and brain functions.

Stages of Employment: Application and Interview

The ADA prohibits all disability-related questions, medical inquiries and exams, on the application or during the interview, even if they are related to the job. Furthermore, an employer may not ask an applicant about the existence, nature, or severity of a disability.

Disability-related questions include:

• Are you taking prescription drugs?
• Do you have a disability, illness or condition that will prevent you from doing this job?
• Have you ever been treated for addiction to alcohol, opioids or other drugs?

Pre-Offer Employment Inquiries and Addiction to Alcohol

Scenario: Antonio has a job interview. His resume shows gaps in employment. These gaps are due to his addiction to alcohol, and they include stints in recovery. Is an interviewer allowed to ask about the employment gaps? If so, is Antonio required to mention his alcohol addiction?

Under the ADA the interviewer can ask about gaps in employment. Antonio, in turn, can tell the interviewer he had an illness, is fully recovered and excited about the job opportunity. This way he can be honest without disclosing a specific disability.

The interviewer is not allowed to ask about disability. However, if they do ask, Antonio must honestly answer. Yes, even though the question is illegal. Because lying on an application is a legitimate reason for not hiring (or eventual termination). Antonio can later file a complaint for being asked a disability-related question at this stage of the interview process.

Pre-Offer Job Inquiries and Illegal Use of Drugs

Scenario: Lily has been cocaine-free for three years. She applies for a job that she is qualified to do. The interviewer finds out about her past addiction and asks about it.

Does Lily have protections under the ADA? Yes, she does have protections. Questions about past addiction are prohibited. So are those about previous treatment. They’re disability-related. Because past drug addiction is classified as a disability.

The ADA protects a person in recovery who is no longer currently engaging in the illegal use of drugs and who can show that they meet the definition of disability.

Illegal use of drugs means use of illegal drugs such as heroin or cocaine, or use of prescription medications such as opioids or morphine either without a prescription, with a fraudulent prescription, or in doses greater than prescribed.

In recovery means either in recovery from or in treatment for substance use disorder (SUD) and no longer using illegal drugs.

Current means recently enough to conclude that a person’s illegal drug use is a real and ongoing problem.

Questions about use of alcohol or illegal drugs are permissible. (e.g. Have you ever used or do you currently use heroin?) Because a positive or negative answer does not reveal a disability. However questions about the extent or frequency of alcohol or illegal drug use are unlawful. (e.g. How much alcohol or illegal drugs did you consume? How often do/did you drink alcohol or use illegal drugs?) Because these questions may reveal an addiction.

After a Job is Offered, but Before Starting a Job

Scenario: Five years ago, Sarah became addicted to opioids after shoulder surgery. When her prescription ran out, she illegally obtained oxycodone. Two years ago, she started her recovery, which included a prescription for Suboxone.

Does Sarah have any protections under the ADA? Yes, Sarah is a person with a disability. If she is asked, she must be honest about her addiction. However, if she is not asked and does not need a reasonable accommodation, she does not have to disclose her disability (addiction).

At this stage an employer may:

• make medical inquiries, require medical exams and ask disability-related questions provided it does so for all individuals within a job category
• ask questions about use of alcohol or drugs, or the extent of use
• ask questions about the diagnosis of addiction to alcohol or drugs

Again though, the individual must disclose a disability if asked.

On the Job

Scenario: Binh’s supervisor notices changes in his behavior. She sees Binh sleeping at his desk, hears him slurring his speech on the phone, and notices that he has lost weight. In addition, his work productivity is lower. She speaks with Binh about his behaviors and job performance. Binh admits he is using heroin and needs to go to treatment.

Does Binh have any protections under the ADA? No. Binh is not protected by the ADA. His performance and conduct is due to his current illegal drug use. Therefore, the employer has no legal obligation to provide a leave of absence. It may also take whatever disciplinary actions it deems appropriate. Under the company’s drug use policy, Binh can be fired for using illegal drugs at work.

Of course nothing in the ADA would limit the company’s ability to offer leave or any other assistance if it so chooses. Some employers offer a “Last Chance Agreement” before terminating an employee. This generally consists of the employee agreeing to receive treatment and avoiding any further workplace issues. Violating the agreement usually is grounds for immediate termination.

Legal Use of Drugs and Addiction

Scenario: Alexandra became addicted to Percocet after extensive oral surgery despite taking the medication as prescribed.

Is she protected under the ADA? Yes. Alexandra is a person with a disability (addiction) under the ADA because she is legally using a drug as prescribed for an underlying condition. However, if she takes more than prescribed (illegal use), she may no longer be covered under the ADA.

The ADA, Medical Marijuana and State Law

The medical marijuana issue is complicated. Since it remains illegal under Federal Law, the ADA is prohibited from offering any protection whatsoever. However, since medical marijuana is legal in some states, employers may need to consider reasonable accommodations for offsite use. Nevertheless, it’s important to know what each state law allows and disallows. Especially considering there’s such a wide variance in the type of protection they may extend to job applicants and employees.

Need More Information?
If you have questions about your rights or obligations under the Americans with Disabilities Act, contact your local ADA Center toll-free at 1-800-949-4232. You can also email your local center by completing the form found here. All calls and emails are treated anonymously and confidentially.

Healing Properties

Healing Properties does not pretend to know even a fraction of all that’s covered by the Americans with Disabilities Act. We also recognize that there’s no possible way to summarize the law in a single post. We simply want everyone to know that the ADA’s coverage includes addiction and alcoholism. And therefore it might just apply to you. But it’s a robust and comprehensive law. And we recommend you address any and all questions to your local ADA Center. We also recommend that you take advantage of all the law offers. Because it was designed to help.

Speaking of help… How are you? Your loved ones? Everybody weathering 2020 okay? Anyone in need of a little extra assistance? If so, please reach out. There’s no shame in that game. None whatsoever. This year has hit everyone hard. And help can help cushion the blow. Considerably.

(Image courtesy the good folks at Contemporary Families — with great gratitude.)