The Harman Firm, LLP

Substance Abuse Discrimination

When an employee is in a wheelchair, their impairment is obvious. Substance abuse and dependence, however, can at certain times be invisible—and just as debilitating, if not more so.

Obvious physical disabilities more readily elicit the sympathy they deserve, and have been accordingly protected under the law for many years. Addiction, on the other hand, is frequently misunderstood or even draws scorn.

The fact is, alcoholism and drug addiction are mental illnesses. According to the National Institutes of Health, “alcohol and other drug (AOD) use disorders (AODUDs) [....] result from a combination of genetic, environmental, social, and psychological factors.” The term “substance abuse” encompasses alcoholism and drug addiction, including everything from misuse of prescription medication to abusing illegal narcotics.

Substance abuse disorders are fully recognized as debilitating impairments by the American Medical Association: “The AMA believes it is important for professionals and laymen alike to recognize that alcoholism is in and of itself a disabling and handicapping condition.”

Not only that:


  1. Endorses the proposition that drug dependencies, including alcoholism, are diseases and that their treatment is a legitimate part of medical practice, and

  2. Encourages physicians, other health professionals, medical and other health related organizations, and government and other policymakers to become more well informed about drug dependencies, and to base their policies and activities on the recognition that drug dependencies are, in fact, diseases.

(Emphasis added. See: further reading from the AMA on drug and alcohol dependence.)

Many addicted and alcoholic people can perform proficiently at work, but can nevertheless be debilitated by addiction over time—often due to behavior that occurs 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, in many instances employers have a legal responsibility to accommodate employees' reasonable requests, such as time off from work to complete rehabilitation, or an adjustment in schedule so as to attend a support group or see a mental health professional.

Alcoholism and addiction carry heavy stigmas: when former drug abusers 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.

Rather than be permanently shackled by the illegal bias associated with revealing one’s substance abuse problem, people in recovery have the unfettered right to contribute to the workplace like anyone else. 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 the 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.

The stigma of substance dependence, unaccompanied by actual poor work performance, is insufficient, illegal justification for discrimination. Many people, employers included, are unaware of this fact. But the law is clear: recovery from addiction/alcoholism is a protected disability.

At The Harman Firm, we pride ourselves on an up-to-the-minute understanding of all relevant regulations. We offer expert advice and aggressive representation for employees facing discrimination in all its forms. If you have any questions about employment law or workplace mistreatment you may have suffered, contact us today.

If you think you might have a problem with drugs and/or alcohol, please visit this list of helpful resources provided by the American Medical Association.