Did you know that a history of substance abuse qualifies as a disability under two federal laws? Here’s what else you should know before you start your job search.
You are probably already aware that the Americans With Disabilities Act (ADA), passed in 1990, and the Rehabilitation Act, passed in 1973, prevent employers from denying a job to a qualified applicant with a disability. But did you know that “disability” can include substance abuse? In many cases, according to Derek Carr, a fellow with the Network for Public Health Law, a previous addiction to illegal drugs or controlled substances qualifies as a covered disability. This does not, though, include past casual substance use, or current use of illegal drugs. These laws apply to most private employers as well as organizations receiving federal financial assistance, so they cover the majority of U.S. workers.
An applicant does not have to produce medical records to prove that he or she has a serious health condition. All that is required is a medical certification, which is a doctor’s note indicating that the applicant has a condition that requires ongoing treatment over a significant period of time that is likely to involve periods in which he or she will miss work.
Applying for a Job
Carr says the Equal Employment Opportunity Commission (EEOC), a federal agency, is a great resource to start with if you’re applying for a job and wondering about a current or past addiction. The EEOC will answer such questions as whether a potential employer is allowed to ask you about your previous illegal drug use (yes, provided the interviewer isn’t trying to find out information about a disability, i.e., addiction). Remember that while past addiction to illegal drugs or controlled substances is a covered disability under the ADA as long as the person is not a current illegal drug user, past or current casual use is not covered. So an employer may ask, “Have you ever used illegal drugs?” or “When was the last time you used illegal drugs?” or “Have you used illegal drugs in the last six months?” These questions are not likely to tell the employer anything about whether the applicant was addicted to drugs, says Carr.
No one can anticipate every question a prospective employer will ask, but it’s a good idea to have a notebook with you and write down questions you were asked, whether they were on an application or asked in person. If you don’t get a job you’re qualified for and wonder if you can appeal based on the responses you gave, a private employment attorney or one with the EEOC might be able to help. The process, though, could be long and expensive if you work with a private lawyer.
When You’re on the Job
Carr says there are some exceptions to a protected disability, such as when an individual is under the influence of alcohol while at work. In this case an employee is not protected under the ADA. And an employer cannot use an employee’s alcohol use disorder (AUD) itself as the basis to take action against the worker or to punish him or her more severely than someone without such a disorder. However, the employer may take such action if, based on a general policy applicable to all employees, AUD makes the employee unable to perform his or her duties.
When it comes to marijuana, smoking or using pot is considered illegal drug use under the ADA and the Rehabilitation Act. Regardless of whether marijuana use, for whatever purpose, is legal under state law, it is illegal in all circumstances under federal law and the Constitution’s Supremacy Clause requires that federal law trump state law when the two conflict. Thus, current marijuana users are provided no protection by the ADA or Rehabilitation Act, but as with other drugs considered illegal, past addiction to marijuana is a covered disability under the ADA. In one case in Colorado, where marijuana is legal for both recreational and medicinal use, a paralyzed man used marijuana medicinally in his home, but was fired by his employer. The Colorado Supreme Court found that because his use violated federal law, his employer’s decision to fire him on the basis of his marijuana use was legal.
Carr says a key change that could help job applicants is reducing the pervasive stigma against people who face addiction. In a similar effort to reduce stigma and improve employability, some states have gotten rid of a question on job application forms asking if applicants have ever been in prison. These initiatives are too new, though, to know if they have increased employment opportunities for people who were previously incarcerated.
If you’re in doubt about how to answer specific questions asked in a job interview, Carr suggests consulting a local lawyer. He stresses, too, that “the one thing an applicant should never do is lie or otherwise make misrepresentations. If an individual believes he or she has been asked an illegal question on the basis of [his or her] substance use disorder, he or she should seek advice from a licensed attorney or contact the Equal Employment Opportunity Commission, the federal agency tasked with enforcing the Americans with Disabilities Act and Rehabilitation Act.”