When an employee is in a wheelchair, their impairment is obvious. Substance abuse and dependence, however, can be invisible—and just as debilitating.
Physical disabilities elicit the sympathy they deserve, and are accordingly protected under the law. Addiction, on the other hand, draws scorn. Unsurprisingly, voluntary self-destructive behavior is not a protected disability. But what happens when the substance abuser begins to better herself? Alcoholism and addiction carry heavy stigmas: when former drug abusers recover, they can be unfairly mistreated by employers for whom choices in the past outweigh a healthy present.
Rather than be permanently shackled by past mistakes, people in recovery should be free to contribute to the workplace like anyone else. The law reflects this: Discriminating against someone for their former drug abuse is illegal, as long as that person is in treatment or has been treated, and is in fact no longer using drugs. This is the case under both the federal Americans with Disabilities Act (ADA) and New York City Human Rights Law.
The ADA’s Title II Technical Assistance Manual explains the Act’s requirements for a general audience. As mentioned, active drug use is not protected: “Discrimination based on an individual’s current illegal use of drugs is not prohibited.” Regarding former users, the Manual is equally clear:
Does title II protect drug addicts who no longer take controlled substances? Yes. Title II prohibits discrimination against drug addicts based solely on the fact that they previously illegally used controlled substances. Protected individuals include persons who have successfully completed a supervised drug rehabilitation program or have otherwise been rehabilitated successfully and who are not engaging in current illegal use of drugs. Additionally, discrimination is prohibited against an individual who is currently participating in a supervised rehabilitation program and is not engaging in current illegal use of drugs. Finally, a person who is erroneously regarded as engaging in current illegal use of drugs is protected.
(Regarding the last point: A useful guide from the Cornell School of Industrial and Labor Relations points out that employers cannot discriminate on the basis of a “false positive drug test” that inaccurately creates the impression of addiction. Interestingly, according to the same article, the law does not protect employees mistakenly believed to be “recreationally using illegal drugs on an occasional basis” [emphasis added]—because recreational use, real or perceived, is not a “substantially limiting impairment.”)
The NYC Human Rights Law spells out parameters similar to the ADA: “In the case of alcoholism, drug addiction or other substance abuse, New York City law only protects an employee or applicant who (1) is recovering or has recovered and (2) currently is free of such abuse.”
Useful further discussion of alcoholism, drug abuse/addiction, and disability discrimination can be found in a post on the blog of the Warshawsky Law Firm. For example—seeking treatment itself is afforded some protection:
An employer is not required to accommodate an employee’s intoxication or the adverse effects of excessive alcohol use. For example, even if an employee has the disability of alcoholism, the employer is not required to allow the employee to arrive late to work due to the effects of a hangover. On the other hand, the employer may be required to accommodate the employee’s efforts to obtain treatment for the alcoholism.
(Emphasis added.) This is a complex area of employment law. If you have any questions, or if you’ve been discriminated against or harassed at work for any reason, contact The Harman Firm today.