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May 24, 2018

Folks, I’m warning you, this is a tough one.

Under the Americans with Disabilities Act, an employer must provide a reasonable accommodation (if available) to a qualified individual with a disability upon request if doing so will enable that person to perform the essential functions of the job.

An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

The ADA provides that any employee or job applicant who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” However, “qualified individuals” under the ADA include those individuals:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • who are regarded, erroneously, as illegally using drugs.

Learning the hard way

So, imagine that you have an employee who tells you that he takes doctor-prescribed drugs as part of his rehabilitation to remain illegal-drug-free.

Can you discipline him?

Well, not unless you fancy being the defendant in an ADA lawsuit, maybe one the U.S. Equal Employment Opportunity Commission files. Just ask this South Carolina business. Here’s what the EEOC said in a press release after settling:

“According to the EEOC, the [the employer] violated federal law when it terminated an employee… after he disclosed his participation in a supervised medication-assisted treatment (MAT) program. [The employer] hired [the employee] as an afterschool teacher at its Easley, S.C. facility. EEOC alleged that at the time of hire, [the employee] disclosed his prior opiate addiction and participation in a MAT program, through which he was legally prescribed the drug Suboxone as part of his treatment. [The employer] terminated [the employee] about thirty (30) minutes into his first work day due to his Suboxone use. The EEOC contends that [the employer] failed to conduct an individualized assessment prior to terminating [the employee]. The assessment would have helped determine what effect, if any, the Suboxone had on [the employee’s] ability to perform his job duties. Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability.

Are there situations in which an employer could terminate an employee using Suboxone? For example, if an employee cannot perform the essential functions of the job with or without accommodation, that employee would not be a “qualified individual” under the ADA. Consequently, he or she would have no ADA job protection.

Except, the timing in this particular situation is suspect. According to the EEOC, the employee was fired 30 minutes into his first day of work and right after he divulged his prescription drug use. It’s hard to argue that circumstances had changed that much or that the employer had conducted an individualized assessment to determine whether the employee could still perform the essential functions of the job.

Here’s more from the press release: “Employers should make employment decisions based on an applicant’s qualifications and an employee’s performance, not based on disability or participation in a medically-assisted treatment program,” said Lynette A. Barnes, regional attorney for EEOC’s Charlotte District Office.

Another consideration — FMLA

Let’s change the facts a bit.

Assume that after a few years of employment, the employee divulges his drug treatment. Not only would he have rights under the ADA, but the Family and Medical Leave Act would afford him added protection.

The Department of Labor (here) reminds us that “[t]reatment for substance abuse may be a serious health condition if the conditions for inpatient care and/or continuing treatment are met.” However, “absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”