By: Amy Epstein Gluck

As the late, great Amy Winehouse sang:

They tried to make me go to rehab
I said, “no, no, no”

Employers, if an employee seeks leave to go to rehab, your refrain is more likely to be, “yes, yes, yes.”

Why?

If an employee seeks help to treat an addiction, said employee is likely protected by the Americans with Disabilities Act (“ADA”) or, for small employers (with less than 15 employees), a corresponding state human rights law.

One software company discovered this the hard way when it allegedly fired an employee for taking leave for inpatient treatment for substance abuse.

In a lawsuit filed in the U.S. District Court for the Eastern District of North Carolina, Western Division, the Equal Employment Opportunity Commission (“EEOC”) alleged that the company terminated an IT employee’s employment because he was “regarded as disabled.”

You can read the EEOC’s account of the settlement here.

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“Regarded As” Having a Disability

In its complaint, the EEOC alleged that the employer regarded the worker as having a disability—and after he successfully completed leave to treat this addiction and reduce his need for physician-supervised medication-assisted treatment, he was questioned, and when he explained why he needed to go to rehab, he was fired.

The ADA protects employees from discrimination in the workplace on the basis of a physical or mental disability. A “disability” within the meaning of the ADA is a physical or mental health impairment that limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace, and the ADA does not protect current employees who use or those whose poor performance or substandard conduct is due to the current illegal use of drugs.

BUT, if an employee requests an accommodation to treat an opioid or alcohol addiction, employers, you know what to do, right?

Engage in the interactive process, and accommodate the employee to the extent that it does not constitute an undue burden on your workplace.

“Employees in recovery and actively participating in treatment should not fear losing their jobs,” according to the regional attorney of the EEOC’s Charlotte District Office.

The Settlement

Money.

Precisely, the company agreed to pay $80K to settle this disability discrimination lawsuit.

What else?

The EEOC and company entered into a three-year consent decree settling the lawsuit, the company agreed to revise, implement, and distribute personnel policies stating that it does not exclude employees based on their participation in a medication-assisted treatment program, agreed to provide annual training to its HR team, managers, supervisors, and employees, agreed to post a notice regarding the settlement, and agreed to report to the EEOC all negative actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in or have successfully completed a drug rehabilitation program.

It’s…a lot.

Employer Takeaways

Someone who currently uses drugs is not considered disabled under the ADA. However, someone who is in recovery would have a record of having an impairment and can be “perceived as” having a disability.

Failure to accommodate an employee’s disability not only could cost you, but it tends to discourage employees from coming forward to ask for a reasonable accommodation.

No one is immune from developing an addiction. The ADA requires employers to accommodate employees who are brave enough to seek help.