When is substance abuse a disability

The defense of direct threat is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. The determination that an individual with a disability poses a direct threat shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job.

Moreover, the EEOC has emphasized, in its Interpretive Guidance on Title I of the ADA, that an employer may not deny employment to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.

EEOC v. Exxon Corporation. In EEOC v. Exxon Corporation , [94] the courts were forced to analyze the ADA's direct threat [95] defense and how it interacts with the business necessity [96] defense. With respect to substance abuse and the ADA, courts have generally recognized an employer's prerogative to formulate and rely upon safety-based job qualifications, even though they may screen out individuals with disabilities.

In Exxon , the EEOC brought suit against Exxon on behalf of several employees, [97] alleging that the company's blanket policy of prohibiting individuals who have ever been treated for drug or alcohol abuse from working in safety-sensitive designated positions [98] approximately 10 percent of Exxon's positions violated the ADA. The company countered by claiming that the ADA does not require an individualized assessment of an employee's risk of relapse where such an assessment would be impractical or impossible.

The U. District Court found that the ADA permits an exception to the individualized assessment ordinarily required under the law. In its appeal, the EEOC relied on its Interpretive Guidance to argue that employers must meet the direct threat defense:. With regard to safety sensitive requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the direct threat standard.

The Fifth Circuit Court of Appeals examined the text of the ADA and held while direct threat focuses on the individual employee and examines the specific risk posed by the employee's disability, business necessity addresses whether the qualification standard can be justified as an across-the-board requirement.

Nancy Delogu, counsel to the Institute for a Drug-Free Workplace, said it was important to resolve the issue. She testified:. Alcoholism and substance abuse are chronic conditions for which the risk of relapse cannot be well. And for certain very, very highly safety-sensitive positions, those which have no. Whether they're required to transfer them to another position would certainly be something open to a policy debate, but currently this is quite a concern.

Kenneth Collins, formerly the manager of the Employee Assistance Program at Chevron Corporation and currently vice president for Value Options, the nation s second largest provider of behavioral health care services, testified that the Chevron Corporation conducted a study on accident rates of its workers. Collins testified:. It certainly is my position based on my experience and the research done within Chevron and at other similar oil companies who have tightly structured employee assistance programs that, in fact, you can return individuals to highly safety-sensitive positions and not expose the company to increased risks of accidents or errors in judgment.

But that is premised on having a rigorous follow-up program [which involves weekly follow-up testing]. The Exxon case suggests that an employer should carefully consider the context in which medical guidelines will be used; i. The ruling in Exxon suggests that an employer's reliance on medical guidelines may be more defensible when they are used to formulate a broad-based qualification than to assess an individual case.

Some experts suggest that partly because of the publicity surrounding notorious cases like Exxon , companies can become too quick to designate a position as safety sensitive. Mark Rothstein, professor of law and director of the Health, Law and Policy Institute at the University of Houston, testified before the Commission that some employers have indeed been overly inclusive in the process of determining which positions are safety sensitive:.

I think some employers have an overly broad view of what a safety-sensitive position is and have. And I think that these policies are not substantiated by the scientific evidence and I think are directly counter to the purposes of the ADA.

Rothstein testified that while he thought a blanket policy was understandable in the Exxon case, he thought it ill-advised to adopt a basically irrebuttable presumption that anyone who has ever had a substance abuse problem should be barred for his or her lifetime from engaging in an activity that the employer deems to be safety sensitive.

Rothstein referred to the case of Knox County Education Association v. Knox County Board of Education. In Knox County , the Sixth Circuit upheld the drug testing of school personnel, including principals, teachers, aides, secretaries, and bus drivers, on the ground that because these individuals play a unique role in the lives of children, all the positions were deemed to be safety sensitive, including the people who worked in the office. Rothstein testified:. It seems to me that if you broaden the concept of safety sensitive as far as that court and applied it in the workplace, now you're basically saying that anyone who ever had a minor substance abuse problem in college 25 or 30 years ago, they're now barred from who knows how many jobs.

That strikes me as not being based on any good facts or any good policy. She testified before the Commission, We. Rothstein has said with regard to the issues of employers overly expanding the list of safety-sensitive jobs to which people are rejected from blanketly.

An employer may make certain pre-employment, pre-offer inquiries regarding use of alcohol or the illegal use of drugs. After a conditional offer of employment, an employer may ask any question concerning past or present drug or alcohol use as long as it does so for all entering employees in the same job category.

An employer may conduct tests to detect illegal use of drugs. Drug tests are not considered medical examinations, and an applicant can be required to take a drug test before a conditional offer of employment has been made. An employer may refuse to hire an applicant or may discharge or discipline an employee based upon a test result that indicates the illegal use of drugs.

The employer may take these actions even if an applicant or employee claims that he or she recently stopped illegally using drugs. Tests for illegal use of drugs also may reveal the presence of lawfully used drugs, i. If a person is excluded from a job because the employer erroneously regarded him or her to be a drug abuser, currently using drugs illegally, and a drug test revealed the presence of a lawfully prescribed drug, the employer would be liable under the ADA.

Nancy Delogu told the Commission:. With drug abuse in the workplace and the number of individuals who are subject to drug testing, anyone who ever has a positive drug test, theoretically, can claim to be perceived as disabled by his or her employer or would-be employer. As a result, many cases have been brought, and many which are quite frivolous based on a positive drug test.

The employer is going to do whatever they are going to do and then the employee says, Well you saw me as disabled and I'm going to sue. Unfortunately, that's an issue of fact that requires usually lengthy discovery and litigation costs before that can be resolved.

To avoid such potential liability, the employer would have to determine whether the individual was using a legally prescribed drug. You can call toll-free at You can also email your local center by clicking the following link and completing the form: adata. All calls and emails are treated anonymously and confidentially. All Rights Reserved.

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Section — A Celebration of Twenty Years. Inclusive Exhibition Design. Accessible Technology. More events Definition of Disability A person has a disability under the ADA if the person has: A physical or mental impairment that substantially limits one or more major life activities, e.

Addiction to Alcohol Regardless of whether the addiction to alcohol is current or in the past, it is generally considered a disability because it is an impairment that affects brain and neurological functions. Illegal Use of Drugs The ADA protects a person in recovery who is no longer currently engaging in the illegal use of drugs, and who can show that they meet one of the three definitions of disability see above definition of disability.

Illegal use of drugs means: Use of illegal drugs such as heroin or cocaine. You are here Home » Policy on drug and alcohol testing » Drug or alcohol dependency and abuse as a disability.

Page content Section 5 1 of the Code prohibits discrimination in employment on several grounds including "disability. The following examples represent situations in which the use of legal or illicit drugs or alcohol may fall within the Code [10] : Where an individual's use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e. Example: An employer refuses to promote a particular employee because of the perception that the employee has an alcohol dependency.

Providing DDS with a complete picture of a person with mental illness who is experiencing homelessness can be difficult. Frequently, substance use complicates this picture. Since , regulations have become increasingly strict.

Consider: would the person be disabled by one or more disorders if he or she were clean and sober?