Drug use and the ADA
brettw22
Posts: 7,623
OK........I want to know y'alls thoughts or ideas on this........
I have a friend (NO, not me) that had a job in a call center type of environment and he developed a fairly regular drug habit and went into rehab(on his own initiative, though I think that he found out that his employer had been tipped to his habit). Apparently the company approved his leave through some sort of written letter or sorts, so he proceeded to participate in an outpatient rehab program. At some point of his participation of doing the rehab, the company fired him (I believe that they told him that they'd been told of drug use at work<which he denies of course>, or his performance had been slipping<according to him, his call reports show no such decline in performance>).
My friend has talked to a few of his friends and some lawyers and they seem to feel that he has a legal case against his employer for them firing him citing protection from the American Disibilities Act.
I don't know if there is some sort of legally mandated policies by the government to say that an employer HAS to give the employee their job back when they finish rehab or not. But if it's not a governmental requirement, the ADA couldn't come into play if I understand this situation correctly. I'm not sure about drug use, but I know that I've worked for companies where if an employee takes a leave of abscence (family hardships or something like that) they will offer employment to the employee upon their return, but it may not be the same job that they left prior to their leave. I'm curious if the same scenario is what's put into place by the ADA.
Personally, I think that the idea that you can sue your employer because you made the decision to **** your life up (ESPECIALLY to the point of needing to do rehab) is amazing to me. I'm not saying that if you use drugs you should be automatically fired either. I know that there are a lot of people that drink on the job, or may use drugs not as frequently as others, but where is the line drawn legally from an employers standpoint as to what they can or can not protect themselves against? I can't imagine that the government would mandate that an employer is stuck with an employee simply because they went into rehab (be it required by the employer or on their own initiative). Also, if an employer has a ZERO Drug Policy, are they legally allowed to fire an employee at ANY time if they find out drug use is going on? I know that a part of this issue could be whether you work in a RIGHT TO WORK state or not, but that issue aside (if possible), where is the line drawn?
I want to make it CLEAR that I'm not looking for legal advice for my friend. I personally believe that he screwed himself and that with his decision to use drugs, he took on the chance that he would lose his job and that's what's happened to him and he needs to deal with it and move on. I'm curious though about you guys' thoughts or opinions are on this kind of situation and what the legalities are that you know of.
I have a friend (NO, not me) that had a job in a call center type of environment and he developed a fairly regular drug habit and went into rehab(on his own initiative, though I think that he found out that his employer had been tipped to his habit). Apparently the company approved his leave through some sort of written letter or sorts, so he proceeded to participate in an outpatient rehab program. At some point of his participation of doing the rehab, the company fired him (I believe that they told him that they'd been told of drug use at work<which he denies of course>, or his performance had been slipping<according to him, his call reports show no such decline in performance>).
My friend has talked to a few of his friends and some lawyers and they seem to feel that he has a legal case against his employer for them firing him citing protection from the American Disibilities Act.
I don't know if there is some sort of legally mandated policies by the government to say that an employer HAS to give the employee their job back when they finish rehab or not. But if it's not a governmental requirement, the ADA couldn't come into play if I understand this situation correctly. I'm not sure about drug use, but I know that I've worked for companies where if an employee takes a leave of abscence (family hardships or something like that) they will offer employment to the employee upon their return, but it may not be the same job that they left prior to their leave. I'm curious if the same scenario is what's put into place by the ADA.
Personally, I think that the idea that you can sue your employer because you made the decision to **** your life up (ESPECIALLY to the point of needing to do rehab) is amazing to me. I'm not saying that if you use drugs you should be automatically fired either. I know that there are a lot of people that drink on the job, or may use drugs not as frequently as others, but where is the line drawn legally from an employers standpoint as to what they can or can not protect themselves against? I can't imagine that the government would mandate that an employer is stuck with an employee simply because they went into rehab (be it required by the employer or on their own initiative). Also, if an employer has a ZERO Drug Policy, are they legally allowed to fire an employee at ANY time if they find out drug use is going on? I know that a part of this issue could be whether you work in a RIGHT TO WORK state or not, but that issue aside (if possible), where is the line drawn?
I want to make it CLEAR that I'm not looking for legal advice for my friend. I personally believe that he screwed himself and that with his decision to use drugs, he took on the chance that he would lose his job and that's what's happened to him and he needs to deal with it and move on. I'm curious though about you guys' thoughts or opinions are on this kind of situation and what the legalities are that you know of.
comment comment comment comment. bitchy.
Post edited by RyanC_Masimo on
Comments
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You are right, he did kinda screw himself. Companies will do what they want most of the time. However, he does have rights like anyone else.
If he really wants to fight it, have him contact the ACLU. If he's got a good case they'll probably take it for free. -
No way in hell I'm endorsing him on this one, nor am I discussing with him anything about this post. I'm just more or less curious about what others may know about this type of situation. If I was the business, I would probably have let him go, but again, I guess that all depends on what the legalities are..........comment comment comment comment. bitchy.
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Like I said, he's probably screwed. He most likely signed some sort of 'no drug' clause when he was hired, and it's probably written somewhere in their policies that they can terminate due to drugs. They would not have fired him without making sure they covered their asses first.
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I worked at a place where this guy got hurt on the job and was required to take a drug test, and he failed.. I remember something about the company saying he could possobly stay if he went to rehab, But he was a pot smoker i think and didn't feel the need for rehab and declined the offer and quit. I was pretty good friends with my boss and thats the only reason i knew what i did about the guy, plus we all worked together for awhile and he was a good guy ta boot.. No company is bound to keep a person after drug use is found out i don't think.
Ok even if he had a case, and even won and got the job back... would he really want to work there? and they would be waiting just to find something to let him go legitly. Once a company is forced to take an employee back its basically hell to work there anymore..MY HT RIG:
Sherwood p-965
Sherwood sd871 dvd
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SVS pb12/plus2
2 Channel Rig:
nad 1020 Pre-amp
Rotel 1080 stereo amp
Polk sda 2B
kenwood grunt Tuner
realistic lab 450 TT
Signal cable IC -
He deserves his job back if it's still there. If he was granted a LOA (regardless of circumstances), he should have the ability to resume his job when he returns. Employers often downsize or rename a position. If this happens while he's on LOA, then any employment guarantee would depend on local laws or union. Any drug use admitted my the person (but not previously documented by the employer) would be circumstantial. However, the employer would have full rights (and an obligation for other employees), to find out what the treating agency thought of further potential of said employee.
He got screwed, but it may have been justified. If I employed workers, I'd be pissed if the ACLU made me take somebody back to work that might endanger other workers or encure costs from a known drug user.Make it Funky!
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Originally posted by gidrah
If I employed workers, I'd be pissed if the ACLU made me take somebody back to work that might endanger other workers or encure costs from a known drug user.
I totally agree with that gidrah. I guess what's not entirely clear is if drug usage is something that's protected under the ADA.........comment comment comment comment. bitchy. -
sheesh... this is as bad as 1 of our technicians getting popped for a dui on his own time.
My thought on the matter is from an employer standpoint is if this guy/gal took it upon themselves to receive help for substance abuse it is my responsibility to help them succeed. In return, when all is said and done, I know I will have a dedicated individual on my staff.
My thoughts only and am usure what the leaglities are.
HBomb***WAREMTAE*** -
Seems to be conflicting information and interpretation... probably why there are lawsuits.
Q: One of our employees just tested positive for the use of illegal drugs, and we want to fire him. But I seem to remember hearing that drug addiction can be a disability covered by the ADA. Will we have an ADA problem if we go ahead and fire this employee?
A: The ADA doesn't protect current users of illegal drugs. It also doesn't prohibit you from testing employees for drug use. In fact, a drug test isn't considered a prohibited preemployment medical inquiry so you can even test job applicants for drug use under the ADA and reject them on the basis of a positive test. If you have an employee who has tested positive for current illegal drug use, the ADA won't protect her, and you can proceed to termination according to that law.
The situation becomes more complicated, however, when you have an employee who's a recovering addict. Recovering addicts (both employees and applicants) are entitled to ADA protection, again as long as they aren't current users. Someone who tests positive for methadone, for example, may be a recovering addict. How do we sort that out?
The most difficult and frequent situation arises when you're about to fire an employee based on, for example, poor attendance. Let's say the employee has missed work repeatedly in the past few months and has given you no good reasons for the absences, so you are about to call him in to fire him. But the day before the big meeting, he brings in a doctor's note saying he is "in recovery for recent cocaine use and needs three weeks off to attend rehabilitation counseling." And the employee discloses that he's been clean for two days and wants to get his life together.
Depending on the exact situation and history, it would probably be wise in the balance of risks to give the employee the three-week leave of absence (holding his job open during his absence) as a reasonable accommodation to his disability of addiction. Another defense would be that his request is unreasonable or an undue burden, but that will be a weak defense since he is asking for only three weeks' off, which you have undoubtedly allowed to others.
Of course, you may have the defense that the requested accommodation came too late and that he was already "terminated" for all intents and purposes. You could say that you decided to fire him before even knowing about his leave request or drug use, but that would be tough because it would hinge on your proof of the timing of your decision. The fact that he just disclosed his addict (disability) status immediately before you fired him would, frankly, look bad.
Taking employment actions against employees or applicants who disclose that they're in recovery for addiction is always risky because there may be difficult accommodation or discrimination issues related to those individuals that require a full analysis of all the facts.
The Ninth Circuit recently added a layer to the issue when it ruled that an employer may have violated the ADA when it refused to rehire an employee who had tested positive for cocaine use and had been fired years before. The employee subsequently had completed drug rehabilitation therapy and reapplied for his job with Hughes Missile Systems Company (which is now Raytheon) in Tucson.
The trial court judge threw out the case, but the Ninth Circuit ruled that the employee should have a chance at trial to prove that the company's policy was a violation of the ADA because it refused to hire anyone who had been previously fired for a drug-related reason, meaning it refused to hire anyone with a history of drug abuse which is considered an ADA-protected category. There is a good chance that decision will be appealed to the U.S. Supreme Court, but for now, it's the law of our jurisdiction. Hernandez v. Hughes Missile Systems Co., No. 01-15512 (9th Cir., June 11, 2002).
On a related note, don't forget that there are state and federal laws that affect drug testing. Employees can file invasion of privacy and other claims if your policy and testing method aren't up to snuff. For example, Arizona has a statute that provides protection against those kinds of claims for employers, as long as you have a policy that meets the statute's standards.
There are also other federal laws governing drug testing, such as the U.S. Department of Transportation's regulations for drivers. You should make sure that your testing policy and methods comply with all applicable federal and state laws. If you're not sure whether your policy is a good one or complies with the statute, you should consult with legal counsel for review.
**new doc**
Title I of the Americans with Disabilities Act (the ADA) prohibits employers from discriminating against qualified individuals with disabilities when making employment decisions. This includes hiring, firing, promotion, compensation, and training. Employers and administrators of drug-free workplace programs should be aware that alcoholics and some drug abusers are disabled for purposes of the ADA.
Today, anyone who deals with personnel issues must become familiar with the jargon of the ADA. Terms like, "reasonable accommodation," are now familiar to not only human resource and personnel staff but to most employers. Likewise, an often repeated rule is, "an individual who uses illegal drugs is not protected by the ADA," and employers can discharge or deny employment to current users of illegal drugs without fear of being liable for disability discrimination. However, what constitutes current use of illegal drugs can be tricky because the term will vary according to the unique facts of each situation.
However, generally speaking, the above stated rule is correct. The ADA specifically states that individuals who are currently engaging in the illegal use of drugs are not covered by the ADA. The term "drug" does not include the use of a prescribed controlled substance. Although it does include the unlawful use of prescription controlled substances. Best advice to employers: do not apply this rule without careful consideration.
The ADA creates a "safe harbor" for certain drug addicts who will find in this law. Individuals who have completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs are considered disabled for purposes of the ADA. The ADA also protects persons who are erroneously regarded as using drugs when in fact they are not. Therefore, an employer must consider whether the individual fits into one of these categories before taking any employment action.
Although prior drug addiction may be a disability under the ADA, if the individual is currently engaging in the illegal use of drugs he or she will not be protected by the ADA, even if he is addicted. The term current drug use has been heavily litigated in the courts. Current illegal use of drugs is not limited to the use of drugs "on the day of, or within a matter of days or weeks before, the employment action in question." Although, the illegal use of drugs must have taken place recently enough to justify the employer's reasonable belief that drug use is a continuing problem. Accordingly, an employee illegally using drugs during the weeks and months prior to discharge is "currently engaging in the illegal use of drugs." Further, an individual who tests positive for an illegal drug cannot immediately enter a rehabilitation program to avoid disciplinary action and to seek protection under the ADA.
A positive drug test invariably proves that the applicant or employee has engaged in current use. The Equal Employment Opportunities Commission (the EEOC), the regulatory body responsible for enforcing the ADA, has explicitly stated that an individual who has a positive, verified test result is considered a current drug user under the ADA. A positive, verified drug test will drastically simplify the determination of whether the employee has engaged in "current use" for purposes of the ADA.
Therefore, employers are wise to adopt a drug-free workplace policy that includes, at a minimum, pre-employment and reasonable suspicion drug testing. Supervisor training will ensure the testing program is used effectively and appropriately.
Some more info:
http://www.state.oh.us/das/dhr/adatopics/substabuse.html
http://earthops.org/box_2-1.html -
notice this was in the off topic which I enjoy as much as audio;)***WAREMTAE***
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Originally posted by ATCVenom
Will edit my statement as I see I did not word it as it should have been. My apologies
I went to go and quote you and was getting different text than what was showing on my screen and I was like WTF?!?!!?!?
Thank you for that Burdette. It does seem to be a cloudy legal issue. Where I do agree partially with HBombToo, what bothers me most is those that would (and DO) use the ADA inappropriately to gain financial gain based on, what ultimately boils down to, their poor decisions to let themselves become overtaken with a drug habit.
An employer obviously can't be sure of the regularity of the problem, but I think that it's safe to assume that if someone tests positive on a drug test, 99.9% of the time it's not going to "just so happen to be their very first time of EVER experimenting."
I don't think that something you voluntarily ingest should qualify as a 'disibility'. If my parents were killed in a plane crash and I had to go to therapy to sort things out, that's MUCH different than going home to snort a line of coke and then claim that I'm helpless because I have no control of myself. If the employees work suffers, absolutely they should be reprimanded in whatever appropriate manner. If random drug tests are allowed, and an employer has a NO DRUG POLICY, then testing positive for ANY substance that can't be explained legally should be grounds for dismissal.
Maybe it's a hard assed line to take with employees, but ultimately, I think that the business should be allowed to protect itself from what can be a problem in the workplace.:)comment comment comment comment. bitchy. -
Just my .02.
Drug use as a disability? ****. It's a choice. It's not like the information isn't out there or the legality of drug use is questionable.
I rather like the policy of the military, we will put you through rehab and then walk you to the front gate IF you self-ID. If you get bagged for it, a court martial, a trip to the clink and then sayonara with a BCD (Bad Conduct Discharge AKA 'Big Chicken Dinner)
I'm sorry, I have no sympathy for drug use and to claim it as a disability, pure ****. Ask the lovely Wendi if she had any choice in being disabled.
BDTI plan for the future. - F1Nut -
Drug use (abuse) is not an affliction, addiction, or a medical condition. It is a choice. If an individual chooses this as his/her lifestyle, they have no one to blame but themselves. I will not tolerate this behavoir in those arround me, that is my choice. I refuse to associate with weak minded fools who feel better living in an altered state of mind and expect society to be there to pull them out of the **** pit they threw themselves into. You might call my opinion cold and heartless if you will, but I call it taking responsiblity for your own actions and that is not too much to expect from anyone.
I will never knowingly hire anyone that indulges in this lifestyle, nor will I pay to put an employee through any type of rehab program. Any fool that would willingly destroy his own well being deserves nothing from those of us that have the intelligence not to. -
Originally posted by TroyD
Ask the lovely Wendi if she had any choice in being disabled.
What does that mean Troy?comment comment comment comment. bitchy. -
Short version, the lovely Wendi has Rheumatoid Athritis (Junior R. A.) and has had it since she was six. She's had 8 joints replaced. My point is, her condition was not the result of a choice that she made.
BDTI plan for the future. - F1Nut -
Generally, I tend to the left side of center on social issues, but one line I draw is the Left's 'victim' mentality and aggressive pursuit of freeing people from responsibility for their own actions.
Troy, your wife is a wonderful example and the type of person that should shame those who've fought to have all sorts of "afflictions" termed as disabilities. Personally, I don't give two **** whether you smoke a joint or snort a line when you get home from work (or drink many beers, if that is your drug of choice). But don't let it affect your work in any way or, as with any employee not fulfilling their duties, you should be outa here.
Poor hot coffee on your crotch, get millions of bucks.... break into someone's house to rob them, hurt yourself.. and SUE the homeowner? **** you and the system that allows a suit like that to get past the filing stage. I can hardly believe the extent to which some have tried to free people from the repurcussions of their own choices.
The ones that used to really put gravel in my craw were the prisoner lawsuits because they don't have **** channels, or they don't have a choice of two pudding flavors, or because, oh my god, their civil liberties are being denied.. uh.. while in jail! Christ. -
Originally posted by burdette
But don't let it affect your work in any way or, as with any employee not fulfilling their duties, you should be outa here.
What if an employer has a zero drug policy and through a random drug test (if permitted) the employee shows positive, but their work hasn't been affected. Do they still legally have the right to fire them or would doing so open them up to a lawsuit?
Thank you to those that have replied to this post. It's interesting to get peoples opinions on something other than audio only........comment comment comment comment. bitchy.
