• Employers are permitted to ensure that the workplace is free from drugs and alcohol.
• Current illegal drug users are not protected under the ADA, but recovering drug addicts are.
• Alcoholics are protected under the ADA.

The Americans with Disabilities Act (ADA) specifically permits employers to ensure that the workplace is free from the illegal use of drugs and alcohol. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.

Drug use

An employer may discharge or deny employment to current illegal users of drugs based on such drug use without fear of being held liable for disability discrimination. Current illegal drug users are not “individuals with disabilities” under the Americans with Disabilities Act (ADA).

The illegal use of drugs includes the use, possession, or distribution of drugs which are unlawful under the Controlled Substances Act, including the illegal use of drugs and prescription drugs that are “controlled substances.” The illegal use of drugs does not include drugs taken under supervision of a licensed health care professional, including experimental drugs for people with, for example:

• HIV infection
• Epilepsy
• Mental illness

A person taking morphine for cancer pain management, for example, is not using a drug illegally if it is taken under the supervision of a licensed physician. Similarly, participants in a methadone maintenance treatment program cannot be discriminated against by an employer based upon their lawful use of methadone.

Current illegal drug use

If an individual tests positive on a test for illegal drugs, the individual will be considered a current drug user under the ADA. “Current” drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with illegal drugs is an ongoing problem. It is not limited to the day of use, or recent days or weeks, in terms of an employment action. It is determined on a case-by-case basis.

Although the ADA excludes individuals currently engaged in illegal drug use, it does not exclude:

• Individuals who have a record of drug use, or
• Individuals who are erroneously regarded as engaging in drug use.

Nonetheless, an individual who has a record of illegal drug use or was erroneously regarded as engaging in drug use is not automatically an individual with a disability. An employer must still evaluate whether the record or the erroneous perception pertains to a substantially limiting impairment. Only addiction or perceived addiction to a controlled substance meets this standard. If an employer does not regard an individual as an addict, but as a social user of illegal drugs, the individual may not be “regarded as” an individual with a disability and would not be protected by the ADA.

However, while a person who currently illegally uses drugs is not protected by the ADA, people who are addicted to drugs, but are no longer using them and are receiving treatment, or former drug addicts who have been rehabilitated successfully are protected by the ADA from discrimination on the basis of past drug addiction.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or the results of a drug test. A rehabilitation program may include:

• Inpatient treatment
• Outpatient treatment
• Employee assistance programs
• Recognized self-help programs such as Narcotics Anonymous

Alcohol use

Alcoholics are generally considered individuals with a disability and are protected by the Americans with Disabilities Act (ADA). To be entitled to an accommodation consideration, they need not be recovered or in rehabilitation, but they must be qualified to perform the essential functions of a job.

An employer may, however, discipline, discharge, or deny employment to alcoholics whose alcohol use adversely affects job performance or conduct to the extent that they are not “qualified.” If, for example, an alcoholic employee is often late to work or unable to perform the responsibilities of the job because the employee is under the influence of alcohol, as opposed to obtaining treatment for the condition, an employer may take disciplinary action on the basis of poor job performance and conduct. While employers may hold alcoholics to the same standard as other employees, they may not discipline an alcoholic employee more severely for the same performance or conduct.