People who have completed drug and/or alcohol treatment may be concerned about whether their past problems with substance abuse will forever haunt them. However, there are a number of federal and state laws that can help ensure that you are treated fairly and not denied certain services because of your history with substance abuse or treatment for substance abuse.
Federal laws such as the Americans with Disabilities Act and the Rehabilitation Act of 1972 prevent employers in the public and private sectors from discrimination on the basis of past substance abuse treatment, as do some state anti-discrimination laws.
Plus, if you need substance abuse treatment that requires you to take a leave of absence from work, you may be able to do so pursuant to the Family and Medical Leave Act (“FMLA”), which permits up to 12 weeks of unpaid leave for medical purposes. So long as your employer is subject to the FMLA, and you are otherwise eligible to take FMLA leave, your employer cannot discriminate against you for requesting medical leave in order to undergo substance abuse treatment. Your employer also has a duty to accommodate any ongoing treatment that you might need that requires you to be absent from work or alter your work schedule, if it would not cause undue harm to do so.
Furthermore, any information about the fact that you have undergone substance abuse treatment is completely confidential. If your employer needs information about your treatment for the purposes of FMLA or medical insurance, your employer cannot disclose any of this information without your consent. Also, if employment-related drug testing reveals legally prescribed medications in your system, such as methadone, your employer cannot disclose this information, or punish you for it.
Likewise, if you are interviewing for a job, your prospective employer cannot even ask you about any substance abuse treatment that you might have undergone in the past. Employers are prohibited from discriminating against job applicants who have a history of substance abuse or treatment for substance abuse. Similarly, government job placement or training centers, such as unemployment offices, cannot discriminate against you due to your history of substance abuse or treatment.
You are also entitled to fair treatment in terms of housing under the Fair Housing Act, a federal anti-discrimination law. A landlord, seller, realtor, or public housing agency cannot prevent you from renting or purchasing a home because you have a history of substance abuse or treatment. The only exception is that you may not be permitted to live in public housing if you have certain drug-related criminal convictions in your past.
Other government and public agencies are subject to anti-discrimination laws, as well. For instance, you cannot be denied public assistance, such as Medicaid or food stamps, because you have a history of substance abuse or treatment. Public entities such as churches, hospitals, and schools also are prohibited from discriminating against you or denying you services due to your history of substance abuse or treatment.
While many do not see substance abuse as a disability or a serious medical condition, it is classified as a medical disability by the AMA. Therefore, employers should be aware that substance addictions may be covered under the FMLA or the ADA if an employee receives inpatient care or continuing treatment for the problem, or if their addiction substantially affects a major life activity.
In order for the FMLA to apply, an employee must show that at the time of the disciplinary incident, he/she suffered from a “serious health condition” which is an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care at a hospital, hospice or residential medical care facility; or (B) continuing treatment by a healthcare provider.” The employee must show they were receiving continuing treatment by a healthcare provider, or was receiving care at a medical facility.
Under the ADA, alcoholism can be a disability but only if a person can prove a disability that impacted any “major life activities.” These activities may include sleeping, walking, or eating. Employers should be mindful that alcoholism and other substance abuse problems may be considered disabilities under the ADA or a serious health condition under the FMLA requiring the employer to follow the guidelines of each statute
LEAVE REQUIRED BY THE AMERICANS WITH DISABILITIES ACT (THE “ADA”)
There will be occasions when an employee will be entitled to leave under the ADA. When Congress enacted the ADA in 1990 it determined that “…the nation’s proper goals regarding individuals with disabilities are to assure equal opportunity, full participation, independent living, and economic self sufficiency to such individuals.”
The Equal Employment Opportunity Commission regulations define a “disability” as “… a physical or mental impairment that substantially limits one or more major life activities; …a record of such an impairment…or being regarded as having such an impairment.” A “physical or mental impairment” is a condition that affects any of the major body systems, “…a mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” A “major life activity…means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
In determining whether an individual is substantially limited in a major life activity the regulations take into consideration the severity of the impairment, its expected duration, and its long term impact. A person is substantially limited in the major life activity of working if he or she is restricted from performing a broad range of jobs. The inability to perform one particular job does not constitute a significant limitation in the major life activity of working.
Alcoholism is a protected disability under the ADA. The ADA specifically allows employers to prohibit the use of alcohol and illegal drugs in the workplace and to require that employees not be under the influence of alcohol while at work. An employer may also hold an employee who is alcoholic or who engages in the illegal use of drugs to the same standards of conduct and performance as other employees even if the employee’s deficiencies are related to alcoholism or illegal drug use. However an employee must be allowed leave under the ADA and the FMLA for treatment of alcoholism.
At ASI, we have been involved with many Employee Assistance Programs (EAP’s) in the capacity of advocacy for the employee who may suffer from a substance abuse disorder and desires or needs treatment. If you or someone you know suffers from an addiction to alcohol or drugs and would like to receive treatment but are afraid of being terminated from your job as a result, it would be in your best interest to call us prior to making any decision which could affect your livelihood. We can intervene on your behalf and assure that you are treated fairly in accordance with Federal and State laws. We are also affiliated with a variety of treatment facilities which are in network with all major health insurances.
Consultations are available by appointment only.
Myles B. Schlam is a nationally recognized expert in Drug Addiction and the Criminal Justice System and an Internationally Certified Alcohol and Drug Counselor (ICADC). He is one of approximately 100 Criminal Justice Addiction Professionals (CCJAP) in the State of Florida. Mr. Schlam graduated from the St. Thomas University School of Law in ‘02 where he specialized in criminal law and interned with the Public Defender’s Office. ASI is licensed by the Florida Department of Children and Families and operates in the tri-county area of south Florida.