"State of the Union" on substance abuse and the workplace

Where are we these days with respect to mind-altering substances and the workplace? Here's the latest, with the "substances" discussed in alphabetical order. This blog post is guaranteed accurate™ for at least the next five minutes.

ALCOHOL. Alcohol is legal, which means that it is generally recognized as the most abused of substances. Employers can prohibit its use in the workplace and can prohibit employees from coming to work under the influence. That's the easy part.

Under the Americans with Disabilities Act, it's more complicated. Alcohol is not an "illegal drug," meaning that alcoholics who are "current users" do have some legal protections, but alcoholism is not as protected as, say, cancer.

It would violate the ADA for an employer to take action against an employee just because she was an alcoholic. (As an example, you wouldn't want to fire the alcoholic employee for getting drunk at the office holiday party unless you fired everybody else who got drunk at the party, too.)

An employer may have to provide reasonable accommodations to an alcoholic employee, such as allowing time off for AA meetings or medical leave for the employee to enter a detox facility. (AA meeting time and detox time may also be covered under the Family and Medical Leave Act.)

On the other hand, it's legal for the employer to take action against an employee whose alcohol abuse causes her to fail to meet attendance, performance, or behavior standards, even if the employee is an alcoholic. And there's no duty to "accommodate" an alcoholic employee by letting her drink on the job or sleep at her desk because she's too hung over to work.

If the employee just likes to drink and isn't an alcoholic, then she's not "disabled" within the meaning of the ADA and has no protection.

Unless another federal law says differently, workplace alcohol testing must be "cause"-based, as opposed to random or universal. It also can't be done pre-offer. Although a drug test is not a "medical examination" within the meaning of the ADA, an alcohol test is. As a result, alcohol tests can be conducted (1) only post-offer or with current employees and (2) only if there is a job-related reason for the test.

More than half of the states have laws prohibiting discrimination based on an employee's use of "lawful products" or engaging in "lawful activities" off site and during non-working time. These laws were intended primarily to protect smokers and users of tobacco products, but they are not that limited. Most significantly, in Colorado a user of medical marijuana has sued over his discharge, citing the state "lawful activities" statute. His case was argued before the state Supreme Court in September 2014, and we're still waiting for a decision. The case is Coats v. Dish Network.

Of course, specific federal laws governing alcohol use apply to employers in certain industries, such as transportation, aviation, and nuclear energy. Those federal laws override any contrary state or local laws, as well as the ADA to the extent that there is a conflict.

CHOCOLATE, COFFEE, COKE. Legal, delicious, "the pause that refreshes," mind-altering (in a nice way), and as far as I know, not prohibited in any workplaces but also not legally protected -- meaning you don't have to "accommodate" an employee who is insubordinate because he accidentally drank decaf instead of regular before coming to work.

DRUGS. (This has become very complicated, so I had to break it up into categories. See "Legal," "Illegal," and "Marijuana," below.)

Legal. A lot of legal drugs can adversely affect work performance and safety. Think about prescription narcotics. If an employee is taking a prescription drug because of a medical condition, then she is protected from discrimination under the ADA (as well as applicable state and local disability laws) and may also have a right to reasonable accommodation. However, you as the employer would have the right to remove her from safety-sensitive work if necessary until she was off the drug or transitioned to a safer one. It would be illegal to discriminate against the employee because of the medical condition that caused her to need the drug.

Illegal. Marijuana is now in a class by itself, so this category will include everything except marijuana -- cocaine, heroin, crack, LSD, Walter White's legendary crystal blue meth, ecstasy, etc. Current users of illegal drugs have no protection under the ADA. If your employee has used illegal drugs recently enough to test positive, then he is generally considered to be a "current user." But be sure to check your state and local laws, too.

Under the ADA, a drug addict is protected if he is no longer a "current user." A recovered drug addict, like the alcoholic, would be entitled to reasonable accommodations such as time off for Narcotics Anonymous meetings or rehab.

A user who is not an addict has no protection under the ADA, even if he is no longer a current user. (Well, one exception - if he is "regarded as" being a recovered addict, he would be protected.)

Marijuana. If you're in a state that treats marijuana as an illegal drug, then see "Illegal."

If you're in a state that allows medical marijuana use, then the medical marijuana user may be protected under a state or local disability law, and she may also be protected under a state "lawful products" statute. However, the courts say she is not protected under the ADA because marijuana is still an illegal drug under federal law.

If you're in a state that allows recreational marijuana use, then the user would (1) have no ADA protection, (2) presumably have no protection under your state or local disability law, but (3) presumably would be protected under your state "lawful products" law if you have one.

And if you're in one of those highly regulated industries we talked about earlier, you would have to comply with the federal laws that govern your industry. Again, under federal law, pot is illegal.

TOBACCO. Employers can ban tobacco smoking in the workplace and even "on campus," and they can encourage employees to quit smoking through wellness programs. Smoking or nicotine addiction is not a "disability" within the meaning of the ADA, but medical conditions associated with smoking could be. In those cases, of course, the employer would have to make reasonable accommodations under the ADA and any applicable state or local disability-rights laws.

An employer in a "lawful products" state would not be allowed to discriminate against someone because he was a tobacco smoker. (Exceptions may apply.)

Vape Smoker
You've come a long way, baby.

VAPES AND E-CIGS. There is a spirited debate right now about the health risks associated with "vapes" and e-cigarettes. We will leave that to the scientists. Legally, use of these products is neither protected nor expressly unprotected, meaning that an employer can prohibit their use in or around the workplace.

(Like I said, check back with me - anything in this post could change at any time.)


The February-March edition of Executive Labor Summary is out! The Teamsters crash Silicon Valley, longshoremen cause U.S. ports to run aground, Wisconsin expected to go "right-to-work" - David Phippen has it all!

Last chance to register for Cara Crotty's webinar on the LGBT rule issued by the Office of Federal Contract Compliance Programs! Learn what you need to know on Tuesday, March 10, from 1 to 2 p.m. Eastern.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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