According to a 2012 survey by the Partnership for Drug-Free Kids and the New York State Office of Alcoholism and Substance Abuse Services (NYS OASAS), 10 percent of all-American adults, ages 18 and older, consider themselves to be in recovery from drug or alcohol problems. That means many of the more than 23 million Americans are most likely in the workplace; balancing their jobs while managing their substance use disorder. And while more employers are taking steps to offer help, many people with the disease of addiction may not know what is available for support, or know their rights when it comes to their disease and the workplace.
Americans with Disabilities Act
The Americans with Disabilities Act, or ADA, prohibits private employers with 15 employees or more, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities on the job. It goes on to define a disability as a physical or mental impairment that substantially limits one or more major life activities; has a record of impairment; or is regarded as having such an impairment. Does this include substance use disorders? So long as it meets the criteria of limiting life activities, yes.
The ADA specifies that employees currently engaging in the illegal use of drugs are not protected by this when an employer acts on the basis of such use. Employers are allowed to hold illegal drug users and people diagnosed with alcoholism to the same performance standards as other employees. But there are protections for workers in recovery. If a recovering addict is not currently using drugs or alcohol, then they are entitled to a reasonable accommodation. According to the law, that generally means employers should grant leave of absence for treatment or allow employees leave time or modify an employee’s work schedule so he or she can participate in treatment.
Under the ADA, employers can ask applicants whether they drink or use illegal drugs. However, they cannot ask whether an applicant is an alcoholic or drug user, or ask whether he or she has ever been in a drug or alcohol rehabilitation program. Testing for illegal drug use is not subjected to the ADA’s restrictions on medical examinations. However, the law prohibits employers from discriminating against drug users who are currently in a rehabilitation program. The Equal Employment Opportunity Commission further specifies a rehab program to include in/out patient programs, Employee Assistance Programs or self-help programs such as Narcotics Anonymous. A person suffering from addiction who feels his or her rights were violated are encouraged to file a complaint with the EEOC (For more on the Americans with Disabilities Act visit: http://www.eeoc.gov/eeoc/publications/fs-ada.cfm).
If someone with a substance use disorder chooses to enter a treatment program before their employer takes disciplinary action, they cannot be fired for past errors or performance. The Family and Medical Leave Act can protect him or her from losing their jobs while they seek treatment. This law allows eligible employees to take an unpaid leave of absence while protecting their jobs. It grants 12 weeks of medical leave in a one-year period. Again, people with substance use disorders cannot be terminated while they seek treatment by a health care provider or by a provider of health care services on referral. (For more on the FMLA: http://www.dol.gov/whd/fmla/).
The Rehabilitation Act
The Rehabilitation Act protects workers from discrimination based on qualifying disabilities. The law defines that as “persons with a physical or mental impairment which substantially limits one or more life activities,” Major life activities include things like walking, seeing, hearing, speaking, breathing and learning. Alcoholism is listed as an example of a qualifying disability under this law as well, and the law also acknowledges that alcoholism and other substance use disorders can be a substantially limiting life activity even with the help of medication.
The Human Rights Law
New York State also has protections under the Human Rights Law which provides further protection for those seeking treatment for SUDs. It safeguards individuals who consider themselves recovered from or are recovering from drug or alcohol addiction. An individual using drugs illegally is not protected by this law. Again, this law allows employers to adjust work schedules to allow for ongoing treatment—but the employee must still be able to perform essential job functions as anyone else with similar skills, experience and background. Employers are encouraged, where the employer knows of current illegal drug use, or where the job performance of a person who is addicted to alcohol or other drugs deteriorates, to grant them a leave of absence. The employer is encouraged to require the employee to enter and attend a rehabilitation program, along with a “last chance” agreement. Such an agreement would require acceptable job performance and attendance when the employee returns to work. If they refuse leave, treatment or to sign an agreement, the employee may be terminated or disciplined.
Most companies are doing more for their workers when it comes to wellness. Many offer Employee Assistance Programs as a benefit, which can be a tool for workers to help them deal with problems or guide them towards health, fitness and other programs to help their general well-being. Workers should check with their human resources office to find out what is available to them. Many of these programs are managed by outside, third party companies or outside vendors, which adhere to strict privacy and confidentiality laws. Many of these EAPs can help with referrals to treatment for a substance use disorder and can help guide employees toward additional resources to assist them in dealing with addiction.
New Yorkers struggling with addiction, or whose loved ones are struggling, can call or text the State’s toll-free, 24-hour, 7-day-a-week HOPEline at 1-877-8-HOPENY (1-877-846-7369). Information about accessing SUD treatment is also available on the NYS OASAS website: www.oasas.ny.gov.