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Drug users and alcoholics are treated differently under employment disability laws. Under the American with Disabilities Act (ADA), alcoholism is recognized as a disability. Thus, individuals suffering from alcoholism are entitled to the same protections under the ADA as someone with another qualifying physical or mental disability. On the other hand, the ADA specifically excludes from protection individuals who currently illegally use drugs (when the employer’s action is based on drug use). (42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a).)  However, a former drug user may be protected under the ADA if the recovering drug addict falls into the ADA’s safe harbor provision and can show the condition “substantially limits” or is perceived by the employer as substantially limiting, the ability to perform a major life activity.

Alcoholism as a Protected Disability

Courts have usually held that alcoholism is a covered disability, even if the individual still drinks alcohol.  (See, e.g., Brown v. Lucky Stores, Inc. (9th Cir. 2001) 246 F.3d 1182.)  However, some courts have required the individual to show that his or her alcoholism substantially limits a major life activity.  (See, e.g., Alexander v. Washington Metropolitan Area Transit Authority, No. 12-cv-1959 (D.D.C. March 10, 2015) [plaintiff failed to establish how his alcoholism substantially limited a major life activity].) Under California law, alcoholism may be considered a disability under the Fair Employment and Housing Act (FEHA) if it “limits” major life activities. (Gov. Code § 12926.) In contrast with the ADA, the FEHA does not require a substantial limitation.

Employers may nonetheless enforce rules concerning alcohol in the workplace. The ADA specifically permits employers to:

• Prohibit the use of alcohol in the workplace;
• Require that employees not be under the influence of alcohol in the workplace; and
• Hold an employee with alcoholism to the same standards for employment or job performance and behavior to which the employer holds other employees even if unsatisfactory performance or behavior is related to the alcoholism.

Thus, the ADA distinguishes between alcoholism and alcohol-related misconduct; the former is protected while the latter is not. (See Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 436.) Although an employer may enforce its workplace rules against alcoholics, it may not discriminate against an applicant or employee with alcoholism. For example, an employer may not discipline an alcoholic more harshly than it disciplines a non-alcoholic employee.

As with other disabled employees, an employer must provide reasonable accommodations to employees suffering from alcoholism.  This could generally involve a modified work schedule so the employee can attend Alcoholics Anonymous meetings or a leave of absence so the employee can seek treatment.  However, an employer is generally not required to provide leave to an alcoholic employee if the treatment would appear to be futile.  (See, e.g., Fuller v. Frank (9th Cir. 1990) 916 F.2d 558, 562 [employer was not required to give an alcoholic employee another leave of absence when alcohol treatment repeatedly failed in the past].) Additionally, an employer generally has no duty to provide an accommodation to an employee who has not asked for an accommodation and who denies having a disability.

Current Illegal Drug Users

To qualify for protection under the disability laws, an employee must be a “qualified individual with a disability.” The ADA specifically excludes from the definition of qualified individual “any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” (42 U.S.C. § 12114(a).) Therefore, an employee who illegally uses drugs, either as a casual user or because he or she is an addict, is not protected by the ADA if the employer acts on the basis of the illegal drug use. However, the ADA provides a “safe harbor” for an individual who:

1. Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs;
2. Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
3. Is erroneously regarded as engaging in such use, but is not engaging in such use. (42 U.S.C. § 12114(b).)

This provision raises the question whether a drug addict who breaks the employer’s rules can, prior to discipline, enroll in a supervised drug rehabilitation program, and claim ADA protection as a former drug addict who no longer illegally uses drugs. Although each situation must be analyzed individually, an employer could likely persuasively argue that an employee is a “current” user even if he or she recently entered a drug rehabilitation program.  (See, e.g., Brown v. Lucky Stores, Inc., supra, 246 F.3d at p. 1188 [“mere participation in a rehabilitation program is not enough to trigger the protections” under the ADA.].)

A drug addict who is protected under the ADA (i.e., is not currently illegally using drugs) may be entitled to a reasonable accommodation in the form of time off to attend counseling meetings.  Employers cannot discriminate against such individuals on the basis of their past addiction.

Disability laws protect individuals by requiring employers to base decisions on facts rather than stereotypes. Thus, every case potentially involving a disabled applicant or employee must be reviewed independently.