As explained previously, these “getting real” posts are attempts to shed daylight on some of the wildly mistaken beliefs about disability laws. In today’s piece, I’ll talk about the myths and realities of illegal drugs at work.
Even if an employer has a policy prohibiting the use of drugs in the workplace, that employer cannot terminate an employee if he claims that he is a drug addict. This is because drug addiction is considered a disability under the Americans with Disabilities Act (ADA).
Actually, current users of illegal drugs are NOT protected under the ADA. Neither are kleptomaniacs, pyromaniacs, compulsive gamblers or people with sexual behavior disorders.
This may seem strange, because there is little doubt that these conditions would ordinarily fit the legal definition of “disability.” So why are they excluded? The reason, pure and simple, is politics. The drafters of the ADA knew they would face an even bigger battle if certain stigmatized activities were legally protected, so they simply wrote them out of the law.
This may also help explain why alcoholics are protected under the ADA. Regardless of the damage alcohol can do, it is still legal and hence occupies a higher “status” than other addicting drugs.
BUT, REALITY CHECK!
Even if alcoholism is protected under the ADA, an employer can still discipline and even terminate an employee who is under the influence on the job. (The employer should have a policy stating this, of course.)
There were actually some early cases where terminated employees claimed that the ADA allowed them to be drunk on the job. The courts did not buy that, however, and the usual accommodation is to give the employee time off for treatment.
Finally, please keep in mind that although current drug users are not legally protected, former users are. The idea is that the addict who has gone through treatment and is ready to return to work should be able to do so without being stigmatized.
For more information, go to https://www.ada.gov/copsq7a.htm
Nothing on this site is intended to be legal advice.
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