Alcohol and Substance Use Disorder under the ADAAA

By Robert Horton, Lymari Cromwell, Timothy Garrett, and Laura Mallory

Title I of the Americans with Disabilities Act Amendments Act (ADAAA) prohibits employment discrimination on the basis of a disability and requires employers engage in an interactive process and provide reasonable accommodations. A failure to do so may result in liability.

A disability may include alcoholism or substance use disorder, and managing such disabilities can be challenging for employers. While both conditions could be protected under the ADAAA, there are differences in how each condition is treated under the law.

Understanding these differences is essential for any HR professional in implementing a plan after discovering that an employee’s work performance or ability to work is being affected by alcoholism or substance use.

With respect to alcoholism, a person may be considered disabled under the ADAAA if the person can be classified as one of the following:

1. Active Alcoholic – someone not in recovery and actively using alcohol.
2. Recovered or Recovering Alcoholic – someone with a history of alcoholism but who no longer drinks, or someone in a rehabilitation program.

While alcoholism is not a per se disability, an individual addicted to alcohol is considered disabled only when the condition is substantially limiting in at least one major life activity, which may include, but is not limited to, the ability to work.

Substance abuse under the ADAAA is treated differently than alcoholism.  Current users of illegal substances are not covered under the ADAAA. The ADAAA, however, does cover individuals who have completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, as well as individuals erroneously regarded as engaging in the use of illegal substances while not actually engaging in such use. Like any other impairment under the ADAAA, an employee is considered disabled as a result of having a substance use disorder only when the condition is substantially limiting in at least one major life activity.

The ADAAA requires employers to provide reasonable accommodations to qualified applicants or employees with disabilities. A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can do the job without causing the employer undue hardship, such as too much difficulty or expense.

Use the Interactive Process to Determine Reasonable Accommodation

In order to determine the appropriate reasonable accommodation, employers and employees must engage in the interactive process, which requires communication and good-faith exploration of possible accommodations. This interactive process requirement is not limited to alcoholism and substance abuse, rather, it is essential for all types of disabilities. An employer that acts in bad faith in the interactive process may be liable if it can be reasonably concluded that the employee would have been able to perform the job with a reasonable accommodation.

A “reasonable accommodation” is defined as assistance or a change to a position or workplace that accommodates employees with disabilities so they can perform their job without causing the employer undue hardship.

Steps of the Interactive Process

Step #1: Recognize the Accommodation Request

Every time an employee indicates he or she is having a problem related to a medical condition, the employer should consider whether that is a request for an accommodation.

Examples of an accommodation request could include the following:

• An employee needs to take time off.
• An employee exhausts FMLA leave but needs more time off.
• An employee uses medical reasoning as an explanation for absences or performance issues (medication makes it hard to focus, needing extra breaks due to illness, etc.).

Step #2: Gather Information

An employer is entitled to know that an employee has a covered disability and any resulting limitations.  An employer can (and should) require that the employee provide documentation about the disability and any limitations from the employee’s healthcare provider, as well as the duration of any limitations.

Employers must also remember to treat as confidential any information or documentation related to an employee’s alcohol abuse or substance use disorder. Such information and documentation should be afforded the same confidential treatment afforded to any other medical documentation related to employees.         

Step #3: Explore Accommodation Options and Choose an Accommodation

Employers should look to past practices to determine if and how a similar situation was previously handled. Also, it is acceptable to invite both the employee and possibly a healthcare provider to submit accommodation suggestions and take them into consideration. The employer and the employee should interactively seek an “effective” accommodation (one that will allow the employee to perform the essential functions of the job, now or in the near further), that is “reasonable” under the circumstances.  Often, even before any undue hardship analysis, an employer may determine that certain requested accommodations are not “reasonable” and thus not required.  Seeking legal advice during this process is wise, but it is particularly important if an employer is considering rejecting a possible accommodation as “unreasonable” and not required.

Recovering addicts and alcoholics may be entitled to the following reasonable accommodations:

1. Employer-provided leave.
2. Modified job schedule to attend self-help meetings.
3. Job restructuring.

If necessary, the employer should conduct an undue hardship analysis. Generalized conclusions will not suffice to support a claim of undue hardship; but rather, undue hardship must be based on an individualized assessment of current circumstances that show how a specific reasonable accommodation would cause significant difficulty or expense.

Generally, if more than one effective reasonable accommodation applies, the employer may choose the accommodation with one exception: putting the employee on leave. If there is another effective accommodation, other than leave, that would enable the individual to keep working, then the employer cannot require that the individual take leave. However, if the employee has FMLA available, the employee generally is allowed to choose to take leave under the FMLA rather than accept transfer to another job.

It is important to remember that an employer is not required to tolerate an employee’s alcohol or substance use at work, poor performance, poor attendance, or other misconduct.