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ADA: drugs and alcohol.

The Americans with Disabilities Act (ADA) deals specifically and directly with the problem of drug abusers. Unfortunately, the act is not as clear as it could be and leaves a lot open to interpretation.

Under the act, persons "currently" engaged in the illegal use of drugs are not disabled. The meaning of "currently" is open to interpretation.

The regulations provide that current use means recent enough to indicate the person is actively engaged in drug use. ADA does not say, however, whether this means a person's last use was days, weeks or months before.

ADA's regulations establish a very difficult standard. Although a person using drugs is not protected, an individual "erroneously regarded" as engaging in drug use is protected.

Thus, if an employee is accused of being a drug addict but denies it, he would be protected if he is not engaged in drug use. The regulations seem to indicate an employer must show the employee is a current drug user, not just that he has a reasonable basis for believing the worker is a current drug user. It could be difficult for an employer to meet this absolute burden.

If the courts apply this absolute standard, it would cause no end of problems. Every employee who fails a drug test could claim the results were wrong because of some legal drug he had taken. The employer then would be faced with the choice of risking injury to employees on the one hand, and, on the other, proving in court that the drug test results were accurate.

It appears that with this one minor interpretation of ADA, the Equal Employment Opportunity Commission (EEOC) has undone the specific language of the act exempting current drug users from protection. Only time will tell whether the EEOC interpretation stands up in court.

Drug Testing

ADA permits drug testing before or after an offer of employment to ensure that a person formerly engaged in illegal drug use is clean. Drug tests may be used only to detect illegal use of drugs, not drugs taken legally under medical supervision. Also, drug testing must comply with federal, state or local regulations regarding quality control, confidentiality and rehabilitation. The act does not affect U.S. Dept. of Transportation regulations on drug or alcohol testing.

Rehabilitation

First, nothing in the act requires an employer to offer rehabilitation to drug abusers. If an employer does, however, employees who participate will be protected while they are in treatment and after they have successfully completed the program as long as they no longer engage in illegal drug use. During a rehabilitation program, an employer can seek reasonable assurances that drug abuse is not continuing.

An employer who does offer a rehabilitation option to employees who abuse drugs should remember that it is making a worker who would be unprotected by ADA into one who is protected by the act. Certainly, there are sound reasons for offering rehabilitation as an option, including employee morale and retraining costs.

However, during and after an employee undergoes treatment, he will enjoy the act's protection unless he starts using drugs again. At that point, the employer again would have to prove that the worker is using drugs, not that the employer has a reasonable belief.

It could be that the act, in its attempt to protect everyone, has discouraged employer rehabilitation programs.

Alcohol Abuse

ADA is not as clear about alcoholics as it is about drug abusers.

First, there is no general exemption from coverage. Thus, employers should consider alcoholics protected under the act until the courts have decided the issue. The regulations do specify, however, that an alcoholic can be held to the same standards of performance and behavior as other employees even if unsatisfactory performance or behavior is related to alcohol abuse.

Thus, an alcoholic unable to perform an "essential function" of the job should be treated like any other employee. An alcoholic who is continuously absent should be dealt with according to the company's absentee policy. (Obviously, every employer should spell out its absentee policy and, for that matter, all policies should be in a handbook for employees.)

Smoking

The act permits prohibitions or restrictions on smoking in the workplace.

Conclusion

This four-part series has outlined some of the effects of ADA. The full effects will not be known until the courts decide some of the open issues. Until that happens, employers should approach disability issues with care. Erring on the side of caution could save thousands in attorneys' fees. The alternative could be to have one of your cases decide one or more of the unsettled issues, especially since many disability groups will be funding "testers" to test employers' compliance.

There is, they say, an ancient curse that goes: "May you live in a time historians consider interesting." That curse could be modernized to say: "May you be involved in a lawsuit lawyers consider interesting."

Planning and educating supervisors could keep your company from being involved in one of the many "interesting" lawsuits that are sure to come from ADA.
COPYRIGHT 1992 American Foundry Society, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:The Americans with Disabilities Act, part
Author:Kinsella, Daniel V.
Publication:Modern Casting
Date:Apr 1, 1992
Words:839
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