- An employer did not discriminate against an employee based on perceived alcoholism or substance abuse when it required drug testing and counseling, the 2nd U.S. Circuit Court of Appeals has ruled (Flores v. Entergy Nuclear Operations, Inc., No. 18-1936 (2nd Cir. May 28, 2019)).
- The employee, an armed security officer at a nuclear power facility, was offered those conditions as part of a return-to-work agreement following performance issues and criminal charges. But even if the employee was regarded as disabled — as defined by the Americans with Disabilities Act (ADA) — on the basis of alcoholism or substance abuse, "drug testing and counseling are not acts of discrimination, but lawful precautions," the court said.
- Because the employee failed to establish that he suffered adverse employment action because of a disability, a key element of an ADA lawsuit, the 2nd Circuit affirmed a lower court's summary judgment in favor of the employer.
While addiction can be a disability covered by the ADA, employees and applicants who use illegal drugs are not protected, according to the U.S. Equal Employment Opportunity Commission (EEOC). Moreover, employers are allowed to hold those with addiction to the same performance standards as other employees.
Accommodation may sometimes be required, however. For example, an employee with alcoholism may need time off work to seek treatment, the Job Accommodation Network has noted. Additionally, as the Flores court said, drug testing and counseling requirements sometimes can be implemented, according to EEOC. Much of this depends on an employer's "reasonable belief" that an employee would, among other things, pose a direct threat to health or safety.
Employers are forced to bear high costs (both human and economic) when employees abuse alcohol and drugs. Drug overdoses are the fastest growing cause of death at work, according to the U.S. Bureau of Labor Statistics, surpassing vehicle accidents, workplace violence and toxic chemical exposures. And employees with addiction tend to experience higher levels of absenteeism, tardiness, turnover, impaired productivity and addiction-related crimes.
For all of these reasons, employers have been getting creative in their attempts to battle workplace addiction. One Indiana manufacturer, for example, is offering both jobs and drug treatment to applicants who fail an initial drug test. Another manufacturer in Ohio created an apprentice program to invest in sober candidates after seeing 40% failure rates on pre-employment screening tests. Others are employing workplace chaplains to help employees through hard times.
Marijuana in the workplace creates a whole new set of concerns for employers, given that many states have legalized or decriminalized its use. As with other substances that cause impairment, employers are not required to tolerate workers who are actively under the influence of marijuana. But parallel ADA issues can still arise; many employees using medical marijuana have disabilities, Linda Hollinshead, a partner at Duane Morris LLP, previously told HR Dive, leaving employers to balance conflicting obligations.