There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection.  However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.