JAN frequently receives calls concerning employees who are either in recovery from drug addiction or are currently using drugs. While drug addiction can meet the definition of disability under the ADA, individuals who are currently illegally using drugs are not covered. So, a person who is in recovery from drug addiction may be entitled to reasonable accommodations, but current users could be subject to termination with no protection under the ADA if an employer learns of an employee’s illegal drug use. The definition of “current” in this context means that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. There isn’t a clear definition for what constitutes “recent.” It is determined on a case-by-case basis, depending on the specific situation.
So what should employers do when employees disclose they have a drug problem and are currently using illegal drugs? As far as the ADA is concerned, it’s really up to the employer and the employer’s policies. However, from a practical standpoint, immediate termination may not always be the best option. Given the time and expense that goes into posting a position, interviewing, hiring, and training a new employee, the employer may want to consider giving the employee a chance to continue in his/her position if the employee expresses a sincere desire to get and stay clean. In such circumstances, employers can require employees to sign a “firm choice” or “last chance” agreement. Such an agreement serves as a contract between the employee and employer laying out the terms by which the employee can avoid termination. The following are some of examples of employment situations involving employees with drug addiction and ways employers may handle such situations:
- Example A: An employee of 15 years works as a supervisor for a large department store. She is currently abusing prescription drugs and has come to the realization that she needs help. She discloses to her employer that she has a drug problem and needs to take off for one month to attend rehab. The employer’s policy would normally be to terminate an employee who is found to be using drugs illegally, but given the employee’s honesty and how valuable her experience and skills are to the company, the employer decides to offer the employee a last chance agreement. The employer requires the employee to complete a 28-day treatment program, attend support group meetings once a week, and take a drug test randomly twice a month for six months post treatment. The employee successfully meets the terms of the last chance agreement. The employer then occasionally provides leave and/or schedule modifications as a reasonable accommodation to allow the employee to attend support group meetings.
- Example B: A salesman for a large company has not been performing well and when confronted about his poor sales, he becomes combative. When formally reprimanded, he discloses that he has a drug problem, but says he is planning to go to rehab. The employer gives the salesman the chance to go to rehab, but finds out that he did not enter rehab and is still illegally using drugs. The employer terminates the salesman.
- Example C: A hospital with over 1500 employees randomly drug tests employees without notice twice per year. An employee working as a radiology technician tests positive for opiates. The employer meets with the employee and asks the employee if he has a prescription. The employee says he does have a prescription, but does not feel he should have to provide it to the employer. The employee states that he does not have a drug problem and that the employer is invading his privacy. The employer terminates the employee because the employee could not, or would not, provide proof that the drug he tested positive for was prescribed and being taken legally.
As these examples illustrate, it is at the employer’s discretion as to whether to keep an employee that is a current user of illegal drugs, but it probably makes sense to consider all of the factors before determining which course of action to take. Such factors may include the amount of experience and skills the employee has, the nature of the employee’s work, how the employer found out about the drug use, and how sincere the employer believes the employee is about getting and staying clean.
For more information and accommodation ideas that may be helpful for individuals with drug addiction, visit JAN's A to Z: Drug Addiction.