The Harman Firm, LLP

Substance Abuse Discrimination

Substance abuse and dependency can be invisible at times, complicating how we make laws to protect those afflicted by these issues from discrimination. Obvious physical disabilities often more readily elicit the sympathy they deserve and have been accordingly protected under the law for many years. Individuals who suffer from substance dependences or addictions, on the other hand, are frequently misunderstood and, at times, even treated with scorn. But alcohol and other drug use disorders (AODUDs) are, in fact, legitimate medical conditions and protected disabilities, which are fully recognized as debilitating impairments by the American Medical Association (AMA), and discriminating against an employee because of their substance use disorder is illegal under federal, state, and city law.

According to the National Institute of Health, AODUDs “result from a combination of genetic, environmental, social, and psychological factors” and encompass a variety of types of substance abuse, from the misuse of prescription medication to illegal narcotics to alcohol abuse. The AMA encourages medical professionals, government officials, and policymakers to become better educated about drug and alcohol dependencies and to form policies that treat these disorders as valid medical conditions.

Many individuals with a substance use disorder are able to perform their work proficiently, but can nevertheless be debilitated by addiction over time—often due to behavior occurring outside the workplace. Actively addictive behavior, such as using drugs and alcohol in the workplace, is not protected activity. However, when substance abusers express a desire to become healthy and/or begin to recover from addictive behavior, employers have a legal responsibility in many instances to accommodate employees’ reasonable requests, such as time off from work to complete rehabilitation programs or an adjustment to their schedule to allow them to attend a support group or see a mental health professional.

Alcoholism and addiction carry heavy stigmas: Even when former drug abusers or alcoholics recover, they can be unfairly mistreated by employers. This unfair treatment may be illegal and could give rise to legal causes of action against an employer. People in recovery from substance abuse disorders have the unfettered right to contribute to the workplace like anyone else, without being shackled by an employer’s illegal bias against those with a history of substance abuse.

Discriminating against someone for their former drug or alcohol abuse is illegal, as long as that person is in treatment or has been treated and is no longer using drugs. This is the case under both federal law—the Americans with Disabilities Act (ADA)—and New York state and city law, including the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

The ADA’s Title II Technical Assistance Manual explains the requirements and protections of the ADA as they pertain to drug abuse. As mentioned, active drug use is not protected: “Discrimination based on an individual’s current illegal use of drugs is not prohibited.” As for former drug users, addicts currently undergoing rehabilitation treatment, and individuals falsely regarded as drug users, the Manual is clear that such individuals are protected under the ADA:

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.

A person’s history with or recovery from alcoholism or drug abuse is not justification for discriminatory treatment in the workplace. At The Harman Firm, LLP, we offer expert advice and aggressive representation for employees facing discrimination in all its forms, including those who have been discriminated against based on a substance use disorder. If you believe you have been discriminated against based on your history of alcohol or drug abuse or because you are undergoing treatment for substance abuse, contact The Harman Firm, LLP, today.