Addiction, Recovery, and Employment

Does the Americans with Disabilities Act apply to addiction and employment?

The employment section of the ADA (Title I) addresses alcohol use disorder, illegal drugs, and the unlawful use of legal drugs in each stage of employment. This includes the application and interview process, the time after a job offer is made but before the employee has begun work, and while the employee is on the job.

The ADA ensures that people with disabilities, including people with addiction to alcohol or other substances, have the same rights and opportunities as everyone else. These protections also apply to people who experience opioid use disorder and other substance use disorders, so long as they are not currently engaged in the illegal use of drugs. As with other disabilities, the individual must be qualified for the job in question, whether this is with or without reasonable accommodations.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the protections of the ADA when the employer takes action on the basis of their illegal drug use. For example, if an employee is unable to perform their job duties because of their illegal use of drugs, the employer is permitted to take disciplinary action to address this (this is not considered discrimination under the ADA).

Are people with alcohol use disorder protected by the ADA?

They may be. A person who currently uses alcohol is not automatically denied protection by the ADA. Alcohol use disorder is an impairment, and if it substantially limits a major life activity (for example, learning, concentrating, interacting with others, or caring for oneself) it will constitute a disability. Someone with alcohol use disorder may be person with a disability and protected by the ADA if they are qualified to perform the essential functions of the job. An employer may be required to provide a reasonable accommodation to someone with alcohol use disorder, (for example, a flexible schedule to enable the employee to attend counseling appointments).

However, an employer can discipline, discharge, or deny employment to an employee with alcohol use disorder whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

Helpful definitions and key terms

“Illegal use of drugs” means:

1. Use of illegal drugs such as heroin or cocaine.
2. Use of prescription medications such as opioids or morphine 

IF the person has no prescription

OR has a fraudulent prescription 

OR is using more than is prescribed.

“In recovery” means a person is:

1. In recovery from substance use disorder and is no longer engaging in the illegal use of drugs; or
2. Participating in a supervised rehabilitation program and is no longer using drugs illegally.

What does “current” use mean?

1. Use occurred recently enough to justify a reasonable belief that a person’s drug use is a real and ongoing problem.
2. Whether someone is currently using drugs illegally is decided on a case-by-case basis.

How does the ADA apply to addiction and recovery at various stages of employment?

Application and interview

Whether on the application or during the interview, the ADA prohibits disability-related questions, medical inquiries, and examinations, even if they are related to the job. However, employers may ask an applicant about their ability to perform essential functions of the job. An employer may not ask an applicant about the existence, nature, or severity of a disability.

What are disability-related questions?

Disability-related questions that are NOT allowed under the ADA may include (but are not limited to):

• Are you taking prescription drugs?
• Do you have a disability, illness, or condition that will prevent you from doing this job?
• Have you ever been treated for addiction to alcohol, opioids, or other drugs?

Questions related to general well-being, the ability to perform job functions, and about the current use of illegal drugs ARE permissible under the ADA.

An employer can ask about gaps in an applicant’s employment history, but an applicant does not have to reveal that the gaps were due to engagement in the recovery process due to substance use disorder or addiction to alcohol.

Questions about the use of alcohol or illegal drugs are permissible, as a positive or negative answer does not reveal a disability. Questions about the extent or frequency of use of alcohol or illegal drugs are unlawful.

After a job is offered, but before starting a job

An employer may:

• Make medical inquiries, require medical examinations, and ask disability-related questions provided it does so for all individuals within a job category.
• Ask questions about the use of alcohol or drugs, extent of use, or diagnosis of addiction to alcohol or drugs, as long as all individuals entering the same job category are asked the same questions.

An employer may ask all individuals whether they need reasonable accommodations to perform the job. If an employee states a need for a reasonable accommodation and the disability is not obvious, the employer is allowed to request documentation of the disability.

On the job

Once the employee starts their new job, an employer may only make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity. Basically, this means an employer can only ask questions when they have objective reasons for thinking a disability might be affecting or could affect job performance or safety.

If an employee wants to request a reasonable accommodation related to addiction and recovery at this point, and they meet the definition of disability under the ADA, they will need to disclose their disability and may need to provide medical documentation.

Medications for treating opioid use disorder

People who experience opioid use disorder may be prescribed medication to treat their addiction. In these cases, a person is prescribed medication by a doctor such as Suboxone, methadone, or Vivitrol. These are legally prescribed medications used to treat addiction, just like insulin is legally prescribed to treat diabetes.

The ADA, medical marijuana, and state law

Medical marijuana is illegal under federal law and therefore the ADA offers no protection if an employer makes decisions against an individual based on their use of medical marijuana. However, under some state laws, recreational and/or medical marijuana use is legal. If medical marijuana is legal under state law, employers may need to consider reasonable accommodations under a state disability discrimination law for offsite use. You are encouraged to check your state’s laws as there is a wide variance in what these laws say and what type of protection they may extend to job applicants and employees.
 

Additional resources from the ADA National Network

The ADA National Network has created a series of fact sheets about how the ADA intersects with addiction and recovery. The factsheets in the series cover all aspects of life, including employment, and all of the factsheets include scenarios. Start with the ADA, Addiction, and Recovery factsheet for an overview. And then take a look at State and Local Governments and Private Businesses and Nonprofits to learn more about how the ADA protects individuals with alcohol addiction or in recovery in specific situations. Finally, the Addiction, Recovery, and Employment factsheet provides information about last-chance agreements.