Is Drug Use a Disability?

Jan 25, 2014

It is important for employers to understand that it is not a violation of the Americans with Disabilities Act (ADA) for an employer to require tests for the illegal use of drugs. BUT, if you have 15 or more employees, which includes full & part-time, your business is subject to the rules of the ADA.  According to the ADA, casual drug use is not a disability under the ADA. 

Only individuals who are addicted to drugs, have a history of addiction, or who are regarded as being addicted have an impairment under the law. The ADA’s website specifies, “In order for an individual's drug addiction to be considered a disability under the ADA, it would have to pose a substantial limitation on one or more major life activities. In addition, the individual could not currently be using illegal drugs.”  In other words, if someone had an addiction in the past and is currently clean, s/he may have a disability according to the ADA.

Can I fire someone who is using drugs?  Yes, you do have the right to discharge or deny employment to persons who currently engage in the illegal use of drugs. However, your company may violate the ADA in denying future employment based on past failure of a drug test. 

Can I drug test employees for reasonable suspicion?  Yes, according to the Department of Labor “reasonable suspicion testing is similar to, and sometimes referred to, as “probable-cause” or “for-cause” testing and is conducted when supervisors document observable signs and symptoms that lead them to suspect drug use or a drug-free workplace policy violation.  It is extremely important to have clear, consistent definitions of what behavior justifies drug and alcohol testing and any suspicion should be corroborated by another supervisor or manager.  Since this type of testing is at the discretion of management, it requires careful, comprehensive supervisor training.  In addition, it is advised that employees who are suspected of drug use or a policy violation not return to work while awaiting the results of reasonable suspicion testing.” 

While marijuana is now legal in some states, you can use the same guidelines in your workplace as you would for someone impaired by alcohol use.  Also, we don’t recommend you let a potentially impaired employee drive to the testing facility.  

Can I ask a job applicant prior to a conditional job offer whether he or she has ever used illegal drugs or been arrested for drug use?  Yes. It does not violate the ADA to ask whether the applicant has ever used illegal drugs or been arrested for such use. (However, a law enforcement agency may not ask at the pre-offer stage about the frequency of past illegal drug use or whether the applicant has ever been addicted to drugs or undergone treatment for addiction.)  

To ensure that drug use is not recurring, you may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.  According to SHRM, “as with other disabilities, an individual who claims that s/he was discriminated against because of past or perceived illegal drug addiction, may be asked to prove that s/he has a record of, or is regarded as having, an addiction to drugs.”


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