April 05, 2022
The ADA, Addiction, Treatment and Recovery
On April 5, 2022, the U.S. Department of Justice published a new Guidance on “The Americans with Disabilities Act and the Opioid Crisis: Combating Discrimination Against People in Treatment or Recovery.” The Guidance reminds us of the distinction between an individual’s use of an illegal drug and illegal use of a prescribed drug, versus legal use of a prescribed drug. Those who are taking a medication under the supervision of a licensed health care professional are likely protected under the ADA. Those who are using illegal drugs or abusing a prescribed medication likely are not covered. The Guidance also reminds us that the ADA’s protection extends to perception we may have about an individual’s drug abuse, as well as an individual’s association with someone with a substance addiction. While this the DOJ’s Guidance applies to discrimination in public accommodation or by a state or local government, it is a good reminder as the same rules generally apply to employment in the private sector.
By way of example, on April 11, 2022, the U.S. EEOC reported it filed a lawsuit against an employer when the employer rescinded a job offer to an applicant who tested positive for amphetamines. The problem may be that the applicant said the positive result was tied to his proper use of a prescribed medication (Adderall) for a medical condition (ADHD).
From a legal perspective, the employer may have failed to engage the applicant in an interactive dialogue. From that, the employer could learn more about the prescribed medication, if the positive test result indicated use at the prescribed level, and if the individual could safely perform the essential functions of the job with or without a reasonable accommodation.
From an employee relations standpoint, I think the EEOC’s Acting Supervisory Trial Attorney said it well, “When that conversation does not take place, not only may the applicant be denied a job, but the employer may lose a potentially valuable employee.”