By: Jackie Bain
Employers are approaching us in increasing numbers regarding their obligations toward employees battling substance abuse. Two federal laws primarily govern the space, the Americans with Disabilities Act and the Family and Medical Leave Act. Note that state laws may be more restrictive, so we encourage our clients to reach out to local attorneys to determine if additional legal protections are available to employees in their state.
The Americans with Disabilities Act (ADA) covers businesses with 15 or more employees to protects workers from discrimination based on a qualifying disability or a perceived disability, which is defined to include alcoholism and illegal drug use. However, to be eligible, the ADA protects only workers who either (i) have successfully been rehabilitated and are no longer using illegal drugs or misusing alcohol; or (ii) are currently participating in a rehabilitation program and are no longer using illegal drugs or misusing alcohol. Importantly, the ADA does not protect any employee who is presently battling alcoholism and illegal drug use and is not participating in a treatment program. An employee in the throes of substance abuse who is not actively seeking treatment is not protected by the ADA. read more
By: Matt Fischer
Municipalities throughout the nation continue to use zoning to exclude community residences from residential districts despite the presence of numerous court decisions that recognize community residences for people with disabilities as a residential use. Over the past year multiple Florida cities have imposed tougher regulations on community residences for people with disabilities. These communities include group homes, sober living homes, recovery communities, and assisted living facilities that emulate a biological family. In creating these regulations, cities cite to the protection of individuals from the actions of unscrupulous operators and also the need to avoid a concentration of community residences in one area that have shown to undermine the goals of the residents. Thus, if you are an operator in one of these cities, you may be subject to heightened scrutiny and additional documentation requirements ranging from simple registration to submitting an application for a conditional use permit requiring an appearance before a planning and zoning board. read more
By: Randy Goldberg
Title III of the American with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. The ADA “is a testament to this country’s effort to protect some of its most vulnerable citizens” – the disabled. I don’t believe that anyone would disagree with the ADA’s intent and purpose. However, once you bring attorneys into the mix, what was intended to provide access to all citizens has become a cottage industry of generating frivolous lawsuits in order to generate income for unscrupulous attorneys and professional plaintiffs. The ADA permits courts to award attorneys’ fees to a prevailing party. read more