THE DISABILITY OF ADDICTION – Employer Discrimination Against Recovering Addicts

When used in the context of the Americans with Disabilities Act, the term “disability” covers a lot of ground.  There are obviously a number of physical conditions, chronic illnesses, and mental health issues that are invoked and covered by the Act.  One type of disability that often goes overlooked, however, is the well-known, but commonly misunderstood disease of addiction.

The American Medical Association has recognized alcoholism as a disease since 1956, and in 1987, went further by declaring that addiction, generally, is a treatable disease.  Using a number of criteria to evaluate whether a condition can be termed a “disease,” researchers have uncovered a great deal of evidence that supports the classification of addiction as a disease:  (1) addiction is a condition that has a clear biological basis, as genetics are often a significant factor in the development of addiction; (2) addiction carries with it identifiable signs and symptoms that are present in most affected persons; (3) addiction often has a predictable course and outcome, as persons affected by the disease share common experiences throughout the course of their addiction; and (4) the conditions of addiction are not caused by volitional acts, as those affected are not able to control their substance use.

Despite the overwhelming consensus among the scientific and medical community that addiction is a disease, large portions of the population still have trouble accepting this classification.  Many believe that addiction is simply a lack of willpower or view addiction as a moral weakness.  This misconception of addiction has, unfortunately, created a number of problems for people who have been affected by the disease, even if they have been successfully treated and recovered from their addiction.

A major issue with recovering addicts is presented in terms of employment.  There have been many cases in which employers have either refused to hire a potential employee, or have terminated a current employee, after learning about that individual’s past addiction.  This has occurred even in situations where an employee’s past addiction has been successfully treated, and the person is completely abstinent from substance use or abuse.

Employers are denying jobs to recovered addicts.

Employers are denying jobs to recovered addicts.

Fortunately, State and Federal law offers protections for employees who have been discriminated against because of prior treatment for the disease of addiction.  A number of courts have held that alcoholism and drug addiction are covered conditions under the ADA.

Courts have reached this conclusion because the ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual,” or “a record of such an impairment; or being regarded as having such an impairment.”  42 U.S.C. § 12102(2) (2013).

Recovering addicts would often fall under the second half of that definition — being regarded by current or potential employers as having an impairment.  Employers might think that, because a person suffered from addiction in the past, he or she will engage in some of the behavior caused by addiction during their current performance of work-related duties.  If an employer discriminates against an employee based on its belief that his or her past addiction causes any impairment to a “major life activity,” this could be known as “perceived disability discrimination.”  This is also a prohibited activity under the ADA, and could provide a cause of action to an employee who has been discriminated against under these circumstances.

Additionally, the ADA has within it a “safe harbor” provision for persons no longer engaging in the illicit use of drugs.  § 12114(b) states:

Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who–

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(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;

except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs.

Essentially, this provision makes clear that persons who have undergone treatment for addiction, and that are no longer using drugs, are protected under the ADA.

As society progresses, discrimination against persons who have suffered from addiction will hopefully become a thing of the past.  Until then, it is important for recovering addicts to fully understand the rights available to them under the law.  If you feel that you have been discriminated against by your employer because of a past addiction, you should seek advice about the legal remedies available to you.

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