1. JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Drugs and Alcohol Under the ADA Linda Carter Batiste, J.D., Principal Consultant

2. Drugs & Alcohol under the ADA Why this topic?  New state marijuana laws  Confusion about how the ADA applies 2

3. Drugs & Alcohol under the ADA Does the ADA apply?  Casual/recreational use ≠ impairment, disability  Drug addiction and alcoholism = impairments, may be disabilities  Current use may result in lost coverage 3

4. Drugs & Alcohol under the ADA Drugs: Current Illegal Use  Not protected when an employer acts on the basis of that use 4

5. Drugs & Alcohol under the ADA Drugs: Current Illegal Use  An employee discloses he’s addicted to cocaine and asks for leave time for treatment. 5

6. Drugs & Alcohol under the ADA Drugs: Current Illegal Use  A warehouse worker who was taking prescription pain killers became addicted to the drugs and started taking more than prescribed. He asks his employer for leave time for treatment. 6

7. Drugs & Alcohol under the ADA Drugs: Current Illegal Use  An applicant for a pharmacist position discloses that he was fired from his last job for illegal drug use. He went through rehabilitation two months ago and is no longer using drugs. 7

8. Drugs & Alcohol under the ADA Alcohol: Current Use  Not protected when use negatively affects job performance or compliance with conduct rules 8

9. Drugs & Alcohol under the ADA Alcohol: Current Use  An office worker who was reprimanded for tardiness discloses he has alcoholism and sometimes cannot get up on time because of drinking the night before. He asks that he not be reprimanded. 9

10. Drugs & Alcohol under the ADA Alcohol: Current Use  A social worker who has to occasionally drive on the job to do home visits gets a DUI and has her license suspended. She asks her employer to provide accommodations related to doing home visits until she gets her license back. 10

11. Drugs & Alcohol under the ADA Alcohol: Current Use  A doctor discloses that he has alcoholism and has recently relapsed because of personal and professional stress. He asks for leave time so he can get treatment. 11

12. Drugs & Alcohol under the ADA Discrimination  Unevenly applied conduct rules  Disciplining employees with addictions more severely 12

13. Drugs & Alcohol under the ADA Discrimination  An employer hears that an employee has alcoholism and the employer decides to start watching him for signs he is drinking on the job. One day the employee comes back from lunch smelling of alcohol; the employer fires him. However, other employees have alcohol at lunch and are not reprimanded. 13

14. Drugs & Alcohol under the ADA Discrimination  An employer is aware that many employees use illegal recreational drugs on the weekends, but when one employee discloses that he has become addicted, the employer fires him. 14

15. Drugs & Alcohol under the ADA Last Chance Agreements  Used in lieu of termination  Employer agrees not to terminate, employee agrees to employer’s terms 15

16. Drugs & Alcohol under the ADA Last Chance Agreements  An employer’s top salesman showed up drunk for a meeting with clients and conducted himself in an inappropriate manner. Under company policy, this conduct was grounds for termination. Instead of terminating, the employer offered a last chance agreement contingent on the salesman going into rehab, attending AA meetings, and undergoing periodic alcohol tests. 16

17. Drugs & Alcohol under the ADA Medical Inquiries and Examinations  General rule: Must be job related and consistent with business necessity 17

18. Drugs & Alcohol under the ADA Medical Inquiries and Examinations: Drug Tests  Tests for illegal drug use ≠ medical exam  ADA does not limit, except when done on the basis of drug addiction  May reveal legal use of prescription medications 18

19. Drugs & Alcohol under the ADA Drug Tests  After offering a job to an applicant, the employer finds out the new hire has a history of drug addiction, but has been clean for 10 years. The employer goes ahead with the hiring, but decides to drug test the new hire periodically. 19

20. Drugs & Alcohol under the ADA Medical Inquiries and Examinations: Alcohol Tests  Tests for alcohol use are considered medical exams  Must have reasonable belief, based on objective evidence 20

21. Drugs & Alcohol under the ADA Alcohol Tests  A recently hired bus driver disclosed his alcoholism and asked for leave to seek treatment. After four months of treatment, he was cleared to return to work. Given the safety risks in his job, his short period of employment, and recent completion of rehab, the employer can subject the driver to frequent periodic alcohol tests following his return to work. 21

22. Drugs & Alcohol under the ADA Medical Inquiries and Examinations  Employee asks for accommodations: follow usual rules  Can require documentation to show employee has a disability and needs the requested accommodation 22

23. Drugs & Alcohol under the ADA Reasonable Accommodation: When not related to current use  Attendance  Concentration and meeting deadlines  Handling stress  Maintaining stamina  Avoiding exposure to drugs and alcohol 23

24. Drugs & Alcohol under the ADA Reasonable Accommodation  An employee with alcoholism has relapsed and asks for a flexible schedule so he can attend AA meetings. 24

25. Drugs & Alcohol under the ADA Reasonable Accommodation  An employee with drug addiction completed rehab and has not illegally used drugs for two years. He needs to reduce workplace stress. 25

26. Drugs & Alcohol under the ADA Reasonable Accommodation  A lawyer with alcoholism and stress from family problems had difficulty attending social events with clients where alcohol was served. His employer excused him from attending the events until he was able to deal with his family problems. 26

27. Drugs & Alcohol under the ADA Reasonable Accommodation  A nurse with drug addiction was restricted from dispensing medication after she was caught using illegal drugs. Her employer had a policy allowing employees to participate in drug rehab and return to work with a last chance agreement. When the nurse returned to work after rehab, she was reassigned to a job that did not require her to dispense medication and given periodic drug tests. 27

28. Drugs & Alcohol under the ADA Summary: Drugs and Alcohol under the ADA 1.Is the current use of drugs or alcohol violating company policy? Yes: Can follow policies No: Go to step 2 2. Is current use negatively affecting job performance? Yes: Can follow policies No: Move to step 3 3. Is the employee entitled to an accommodation? Yes: Engage in the interactive process No: Apply usual policies 28

29. Drugs & Alcohol under the ADA Medical Marijuana  State law v. federal law  ADA does not require employers to allow use  Check state laws 29

30. Drugs & Alcohol under the ADA Contact  (800)526-7234 (V) & (877)781-9403 (TTY)  AskJAN.org & jan@askjan.org  (304)216-8189 via Text  janconsultants via Skype 30