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.
Employees who seek out treatment for substance abuse can get the treatment they need and still have a job to come back to if they are employed by companies subject to the Family and Medical Leave Act (FMLA). FMLA governs businesses with 50 or more employees, and allows eligible employees to take unpaid leave for specified family and medical reasons with continuation of group health insurance coverage and return to work under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to twelve workweeks of leave in any 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job, including seeking out treatment for addiction. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave.
An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse. Eligible employee must have been employed by the company for 12 months prior to taking the FMLA leave, and have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.
Employees who are battling addiction with no current intention of seeking treatment are not protected in their jobs under these two laws. The ADA protects persons who have successfully completed treatment or are currently active in a treatment program. FMLA allows employees to take time off to attend treatment, but absence from work resulting from the employee’s abuse of a substance also does not qualify for FMLA leave.
Importantly, all employers who are subject to ADA and/or FMLA should have in place a written substance abuse policy allowing employees with addiction problems to feel safe to request the time off required to obtain treatment, and to understand on what terms their employment may be terminated regardless of their seeking treatment. Policies like this proactively aid employees to understand employer expectation and protect the employer from employment claims later on.