23.5 million Americans aged 12 or older—approximately 10% of the U.S. population—consider themselves in recovery from drug or alcohol abuse problems. In light of these staggering numbers, as well as the ADA’s explicit protections for addicts, litigation related to employee addiction is increasingly common.

The following FAQs address legal responsibilities with respect to addicted employees.

Are Current Drug Users Protected by the ADA?

No. Employees “currently” using illegal drugs use are not protected by the ADA.

The definition of “currently” is far less clear. Courts tend to define the term with a thesaurus rather than a calendar: e.g., “sufficiently recent to justify an employer’s belief that the drug abuse is an ongoing problem” in light of (i) the level of responsibility entrusted to the employee; (ii) the employer’s job and performance requirements; (iii) the level of competence ordinarily required to perform the task in question adequately; and (iv) the employee’s past performance record. Mauerhan v. Wagner Corp., 649 F.3d 1180, 1188 (10th Cir. 2011) (“No formula can determine if an individual . . . is ‘currently’ using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem.”)

Are Former Drug Users “Disabled” for Purposes of the ADA?

Yes.

Individuals who are no longer using illegal drugs, who are receiving treatment for drug addiction, or who have been rehabilitated successfully cannot be discriminated against because of their “history” of disability. There is, however, a curiosity: employees who only casually used illegal drugs in the past — but did not become addicted — are not “disabled” for ADA purposes. See EEOC Technical Assistance Manual on the ADA § 8.5 (“[i]n order for a person to be ‘substantially limited’ because of drug use, s/he must be addicted to the drug”); Almond v. Westchester Cnty. Dept. of Corrections, 425 F. Supp. 2d 394 (S.D.N.Y. 2006) (in a “regarded as” ADA case, where record suggested that defendant employer thought plaintiff was a casual drug user, rather than an addict, plaintiff failed to show entitlement to ADA protection).

What About Prescription Drug Abusers?

Addictions to street drugs and prescription drugs are legally indistinguishable.

Are Alcoholics Covered by the ADA?

Yes; the section of the ADA that excludes current users of illegal drugs from the law’s protection does not apply to alcoholics. While alcoholism is generally regarded as a disability under the ADA, some courts require employees claiming alcohol addiction to show that their addiction substantially limits one or more major life activities. See e.g., Roberts v. Rayonier, Inc., 135 Fed. Appx. 351 (11th Cir. 2005) (alcoholism not disabling).

Are Other Addictions Covered by the ADA?

The ADA explicitly excludes certain conditions from the definition of “disability,” including compulsive gambling, kleptomania, pyromania, sexual behavior disorders and psychoactive substance use disorders resulting from the current illegal use of drugs. Although not explicitly addressed by the ADA, most courts have ruled that ADA protections do not extend to tobacco or nicotine addicts. See e.g., Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001).

Notably, the ADA’s list of addiction exclusions has been questioned lately. Recent case law is leading commentators to ask whether the exclusion of sexual disorders may be unconstitutional at least insofar as gender dysphoria for transgenders is concerned. See e.g., Blatt v. Cabela’s Retail Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) (transgender employee challenging ADA’s exclusion of gender dysphoria).

What is a Reasonable Accommodation for an Addict?

Practical accommodations for qualified addicted employees might include leave time for inpatient treatment; a modified schedule to attend counseling or outpatient treatment; or temporary reassignment to a vacant non-safety-sensitive position while the employee completes treatment. Employers are not required to accommodate an employee’s intoxication or the adverse effects of excessive alcohol use.

In order to receive an accommodation, the employee usually has the initial obligation to alert the employer to the disability. See e.g., Rock v. McHugh, 2011 WL 2119035 (D. Md. May 26, 2011) (an employee with alcohol or drug addiction must demonstrate that the employer was aware of the disability in order to prevail in a reasonable accommodation claim).

What Can an Employer Do to Ensure a Drug and Alcohol-Free Workplace?

The ADA permits employers to:

• Prohibit the use of drugs or alcohol at the workplace;
• Require that employees not be under the influence of drugs or alcohol at the workplace;
• Refuse to employ someone who is a current user of drugs, regardless of performance; and
• Hold drug users and alcoholics to the same job performance standards as it holds other individuals, even if any unsatisfactory performance is related to the individual’s drug use or alcoholism.

Employers also need not excuse the violation of a consistently applied rule even if the misconduct is tied to an employee’s addiction. For example, employers do not need to grant alcoholics immunity from sanctions for tardiness due to being hungover; discipline is proper as long as the employer would impose the same discipline on a nondisabled employee. See EEOC Guidance: Applying Performance and Conduct Standards to Employees with Disabilities.