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Is My Job Protected If I Get Substance Abuse Treatment?
In this article we will set forth some common questions and answers based on federal law. Some states may also provide protection and you should consult your own state laws. More information about the laws protecting substance abusers who obtain treatment can be found at the Substance Abuse and Mental Health Services website and by typing “anti-discrimination laws” into Google.
Please remember that you will often need to seek the advice of a lawyer or of the federal agencies which are responsible for enforcing these laws to see if you are protected or have suffered unlawful discrimination.
QUESTION: WHAT IS DISCRIMINATION?
ANSWER: Discrimination generally means treating someone less favorably than someone else because that person has or had a disability.
QUESTION: WHO IS PROTECTED FROM DISCRIMINATION?
ANSWER: Federal laws prohibit discrimination against qualified “individuals with disabilities.” Generally, an individual with a “disability” is someone who has a current “physical or mental impairment” that “sub¬stantially limits” one or more of that person’s “major life activities,” such as caring for one’s self, caring for one’s family or being able to work.
QUESTION: IF SOMEONE IS IN SUBSTANCE ABUSE TREATMENT OR HAD A SUBSTANCE ABUSE PROBLEM IN THE PAST, DOES THIS MEAN THAT THE PERSON QUALIFIES AS DISABLED?
ANSWER: The Americans with Disabilities Act (“ADA”) applies to all government employers and to all private employees with 15 or more employees. The ADA provides that an employer may not deny a job to an otherwise qualified person if the person is in treatment or is recovering from a substance addiction unless the person’s “disability” would prevent the person doing a safe and competent job.
QUESTION: WHAT IF I NO LONGER AM ADDICTED TO ILLEGALLY OBTAINED DRUGS BUT STILL USE ILLEGALLY OBTAINED DRUGS OCCASIONALLY?
ANSWER: The anti-discrimination laws only protect applicants and employees who are not currently engaging in the illegal use of drugs.
QUESTION: WHAT IF I TELL MY EMPLOYER ABOUT MY TREATMENT, CAN MY EMPLOYER PASS THIS INFORMATION ON TO OTHERS?
ANSWER: Your employer must keep confidential any medical-related information they discover about a job applicant or employee, including information about a past or present substance use disorder.
QUESTION: CAN EMPLOYERS ASK ANY QUESTIONS RELATING TO MY PREVIOUS SUBSTANCE ABUSE OR MY SUBSTANCE ABUSE TREATMENT?
ANSWER: The answer depends on when the question is asked. Prior to making an offer of employment an employer:
- If an employment applicant has been or is addicted to drugs or alcohol
- Received treatment for substance abuse
- Is currently receiving treatment for substance abuse.
- If the applicant is now using drugs illegally
- If the applicant drinks alcohol
- Questions about the applicant’s ability to perform the duties of the job
After making an offer to employ the applicant, an employer:
- Can require a medical examination if the same is required of all applicants including ones that reveal a past or current substance use disorder);
- Can condition employment on the satisfactory results of the medical examination unless accommodations can be made without substantial hardship to the employer.
QUESTION: CAN AN EMPLOYER REQUIRE DRUG TESTING OF ITS EMPLOYEES?
ANSWER: Generally, the answer is yes. If the tests reveal the illegal use of drugs, then the employer may discipline or terminate the employee.
QUESTION: DO EMPLOYEES HAVE THE RIGHT TO TAKE A LEAVE FROM THEIR JOB TO OBTAIN SUBSTANCE ABUSE TREATMENT?
ANSWER: If your employer is subject to the requirements of the Family and Medical Leave Act (“FMLA”) then if you have worked for your employer a minimum of 1,250 hours during the preceding 12 months, then you may take up to 12 weeks of unpaid leave to obtain substance abuse treatment. If your employer is not subject to the FMLA, then the decision to give you leave is largely up to the employer unless state law provides otherwise.
QUESTION: WHAT EFFECT DOES A CONVICTION FOR A DRUG OFFENSE HAVE?
ANSWER: In many cases this will depend on the laws in your state. In many states, a drug conviction will make you ineligible for employment in professions requiring licensure, for example, real estate sales, medical professionals and attorneys.
QUESTION: IF A PERSON BELIEVES THAT THEY HAVE BEEN DISCRIMINATED AGAINST BECAUSE OF THEIR PRIOR SUBSTANCE ABUSE, HOW MAY THEY CHALLENGE THIS DISCRIMINATION?
ANSWER: Again, unless the employer specifically tells you that they are not hiring someone or they are terminating someone because of prior substance abuse, it is often difficult to prove discrimination. However, an applicant or employee may file a complaint with the federal and/or state agencies charged with enforcing the anti-discrimination laws.
QUESTION: IS THERE ANYTHING I CAN DO TO PROTECT MY RIGHTS UNDER THESE FEDERAL NON-DISCRIMINATION LAWS?
ANSWER: Yes. If you believe you are being or have been discriminated against because of your past or current alcohol disorder or past drug use disorder, you can challenge the violation of your rights in two ways:
People who have conquered their addictions are the best ones to speak to people who have an addiction. One of the people who boasted that he tried every drug was John Lennon. In response to a question about his drug use, Lennon said, “Once you’re so depressed that you get into drugs, once you’re on them, it’s very, very hard to see the light or to have any kind of hope. All you think about is the drug, and it’s no good to us preaching at people and saying don’t take them. Because that doesn’t work. It’s like the church telling you not to drink or not to have sex when you’re a kid. There’s nothing on earth gonna do it. But if people take any notice of what we say, we say we’ve been through the drug scene, man, and there’s nothing like being straight.”
It is good to know your legal rights, but nothing is better than being free of these harmful substances. At Novus Medical Detox Center we help those courageous people who have determined that they want to be free of an OxyContin or Vicodin or heroin or methadone addiction. We help people help themselves.
NOTE: This information is provided for general educational purposes only and is not intended to constitute (i) medical advice or counseling, (ii) the practice of medicine, health care diagnosis or treatment, or (iii) the creation of a physician patient or clinical relationship. If you have or suspect that you have a medical problem or that this information may be useful to you or others, please consult with your health care provider before applying any information from our articles to your personal situation or to the personal situation of others.
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