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Drugs and Alcohol
Applicants or employees who currently use illegal drugs or abuse alcohol are not protected under the ADA or FEHA. You can terminate, discipline or refuse to hire any individual who currently uses controlled substances or who is addicted to them. You can do so regardless of whether the use has any effect on job performance. Taking any of these actions does not violate the discrimination provisions of the ADA or FEHA.
Under the ADA or FEHA, a test to determine if an employee is using illegal drugs or abusing alcohol is not considered a medical examination. You can conduct drug tests that are designed to accurately identify illegal drugs even before a job offer is made. However, the ADA and FEHA protect individuals who have successfully completed a supervised drug or alcohol rehabilitation program and no longer use illegal drugs or abuse alcohol. They also protect individuals who are erroneously regarded as using illegal drugs or abusing alcohol.
Additionally, illegal use of drugs does not include the use of drugs taken under the supervision of a licensed health care professional. To ensure that this requirement is met, give the employee an opportunity to discuss and explain test results. Adopting and administering reasonable policies to prevent drug use, possession, or sale in the workplace does not violate the ADA or FEHA.
Under the ADA or FEHA, a test to determine if an employee is using illegal drugs or abusing alcohol is not considered a medical examination. You can conduct drug tests that are designed to accurately identify illegal drugs even before a job offer is made. However, the ADA and FEHA protect individuals who have successfully completed a supervised drug or alcohol rehabilitation program and no longer use illegal drugs or abuse alcohol. They also protect individuals who are erroneously regarded as using illegal drugs or abusing alcohol.
Additionally, illegal use of drugs does not include the use of drugs taken under the supervision of a licensed health care professional. To ensure that this requirement is met, give the employee an opportunity to discuss and explain test results. Adopting and administering reasonable policies to prevent drug use, possession, or sale in the workplace does not violate the ADA or FEHA.
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Protection for Recovered Drug and Alcohol Abusers. While current users are not protected, recovered drug and alcohol abusers may be covered under certain circumstances. The ADA and FEHA protect people who meet all of the following criteria:
This protection extends to individuals participating in a drug or alcohol rehabilitation program. Past illegal drug use may warrant exclusion from employment in specific occupations, such as police officers, or where the employer can demonstrate a direct threat to the health and safety of the individual or others. Any decision to take action based on prior illegal drug use should only be made after consulting an attorney. Questions about past addiction to illegal drugs or participation in a rehabilitation program are considered “disability-related inquiries. An employer may only make disability-related inquiries if they are job-related and consistent with business necessity. Although individuals with a record of drug use who have successfully completed a rehabilitation program and no longer use illegal drugs may be protected, unacceptable addiction-related misconduct that violates company policy or performance standards is not protected under the ADA. |
Recent Drug and Alcohol Abuse Not Protected by the ADA. The ADA does not protect employees who are participating in drug or alcohol rehabilitation programs unless they successfully refrain from drug or alcohol use for a significant period of time.
Allowed Drug and Alcohol Policies. You may have an employment policy in accordance with the Drug-Free Workplace Act that prohibits employees from being under the influence of drugs or alcohol while in the workplace without violating the ADA or FEHA. You can require your employees who have drug or alcohol dependencies to maintain the same job performance standards as other employees. You have the right to discipline or terminate employees for lack of job performance, tardiness, excessive absences, workplace accidents, etc.
Medical Marijuana Use Not Protected by the ADA or FEHA. You have the right to enforce a drug-free policy in your workforce, even though medical marijuana use is permitted under state law. Drug Use at Work Not Protected by the ADA. Terminating an employee for engaging in the illegal use of drugs at work does not violate the ADA. InCollings v. Longview Fibre Co., the Ninth Circuit Court of Appeals held that such a discharge is based on the employee’s misconduct rather than any disability, such as drug addiction, that would otherwise be protected under the ADA. The Ninth Circuit Court of Appeals case clarifies that the ADA does not protect individuals who are currently using illegal drugs. You can terminate or deny employment to people who use drugs illegally. However, employees who have been rehabilitated successfully are protected under the ADA. Thoroughly investigate any suspected illegal use of drugs before terminating those involved. An individual who was terminated after erroneously being perceived as a drug addict is likely to have a valid claim under the ADA and FEHA. Performance of a good-faith investigation may serve in your defense. |