Employers who must deal with employees battling substance abuse may be surprised to learn that the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) handle the issue of detoxification differently. When an employee seeks treatment for an addiction, it is important to understand if these laws apply and if the employee is entitled to any protections or accommodations.
The ADA does not afford protections to employees who currently use illegal drugs, which includes the use of marijuana. However, the ADA considers a history of drug addiction to be a disability. Also, the ADA does not automatically deny protections to individuals who have developed an addiction to alcohol, which is legal for adults to consume. An employer may be required to accommodate an employee who is currently abusing alcohol under the ADA, but “an employer can discipline or discharge an alcoholic whose use of alcohol adversely affects job performance or conduct.”, according to Christine Howard, an attorney recently quoted by the Society for Human Resource Management (SHRM).
The FMLA does not differentiate between drug and alcohol abuse; both are considered substance abuse. The FMLA does not prohibit an employer from instituting policies against drug or alcohol abuse, or prohibit the employer from enforcing those policies with actions up to and including termination. However, if an employee requests a leave to seek substance abuse treatment, SHRM believes this is “a legitimate basis for FMLA leave”. The DOL has clarified that FMLA leave only applies if the employee will remain an employee after the leave is completed and that the request for leave does not “trump” any disciplinary action that may be taken by the employer. For instance, if an employee fails a drug test, an attorney quoted by SHRM has declared that if the employee then immediately requests leave to seek treatment, the employer can still discipline the employee – up to and including termination.
As is the case with almost all HR policies, an employer must enforce policies related to substance abuse evenly and fairly among all employees. Employers may, for instance, decline to terminate an employee abusing drugs if that employee is an exceptional performer on the job, but if another employee is terminated or treated more harshly for failing an identical drug trust, the employer may be open to civil action that would be difficult to defend – especially if the latter employee is a member of a protected class.