Employee Drug And Alcohol Policy For Employment Protection

“The United States has a serious substance misuse problem,” the Surgeon General stated bluntly in his recent report on addiction. Among other things, the report calls for “improved access to evidence-based treatment.” One reason a lot of people with substance use disorders often try to hide their condition and fail to seek treatment is fear of losing their job. But due to the several employee drug and alcohol policy existing, their employment is better protected than they may know. Two laws, in particular, have provisions relevant to people suffering from the disease of addiction. One is the 1990 Americans with Disabilities Act (ADA). It is one of America’s most comprehensive pieces of civil rights legislation. It prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. Many people don’t know that it also protects the rights of people suffering from substance use disorders. There is a caveat, though. Addiction is only considered a disability if the individual is in recovery or prepared to go into recovery. “A person currently misusing drugs and alcohol is not protected,” explains Sara Holt, director of human resources at Lakeview Health. “But if a person with a substance use disorder approaches her human resources officer and asks for help in order to get treatment, she cannot legally be fired.” ADA is not just applicable to people afraid of losing their job because of an addiction problem. It is also supposed to protect people against discrimination when they are applying for jobs. “If they find out they were not hired because they are in recovery, they should seek legal guidance,” says Holt. The US Commission on Human Rights lists the following legal obligations for employers and employees:

• An individual who is currently engaging in the illegal use of drugs is not an “individual with a disability” when the employer acts on the basis of such use.
• An employer may not discriminate against a person who has a history of drug addiction but who is not currently using drugs and who has been rehabilitated.
• An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
• It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
• An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
• Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.
• Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol use in the workplace.

The second law relevant to employees in recovery is the Family and Medical Leave Act (FMLA). It entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Not everybody is eligible. An employee is entitled to up to 12 workweeks of leave after having worked for the employer for a total of 12 months with a minimum of 1,250 hours during that period. Employees must also work at a location where at least 50 employees are employed by the employer within 75 miles. “FMLA for rehab leave requires a written application with treatment recommendations by a physician,” explains Lakeview’s Sara Holt. “This also involves partial disclosure of the medical condition. The human resources department is allowed to know the employee is going into addiction treatment to assess how much time off work will be required.” Managers, however, need not necessarily know the reason for the medical leave. FMLA provisions are for serious health concerns only and should not be used to get a little break from work. “The system is sometimes abused, but not very often by people with substance use disorders and other behavioral health issues,” says Holt. “Not many will make up an addiction to obtain medical leave because people with this disease are still severely stigmatized.” An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance misuse. The employer may not take action against an employee who is providing such care. Sara Holt is very familiar with ADA and FMLA provisions because Lakeview Health hires people in recovery on a regular basis. “If an employee suffers a relapse, our priority is to help them get back into treatment as quickly as possible, so they can return to work as soon as possible.”