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Author: Justin Mckibben
The vast majority of people struggling with addiction are actually employed. In fact, too many people actually never try to get help for their addiction because they think that having a job means they are not that far gone. However, being a ‘functioning addict’ does not make you any less addicted. The Substance Abuse and Mental Health Services Administration (SAMHSA) actually noted some time ago that 76% of people with substance abuse problems are employed. Unfortunately, too many of them also avoid getting treatment because they fear doing so could actually hurt their careers.
What many may not realize is how things like the Americans with Disabilities Act helps addicts with treatment by protecting them from discrimination.
What Is the Americans with Disabilities Act?
The Americans with Disabilities Act of 1990, commonly referred to as the ADA, is a civil rights law prohibiting discrimination based on disability. It protects individuals with disabilities and guarantees equal opportunity for individuals with disabilities in:
- Public accommodations
- State and local government services
People with disabilities deserve the same rights and opportunities as everyone else, and the ADA is designed to ensure they have them.
One thing that makes the ADA so important is that it requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public accommodations.
How Does ADA Define Disability?
To be clear, employees undergoing treatment for drug or alcohol addiction have always been covered under the ADA. The ADA defines a disability as:
A physical or mental impairment that substantially limits one or more major life activities, a history of having such an impairment, or being regarded as having such an impairment.
The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law, and ended up EEOC developing regulations limiting an individual’s impairment to one that “severely or significantly restricts” a major life activity.
Later on the ADAAA directed the EEOC to amend this regulation and replace “severely or significantly” with “substantially limits”.
The ADA added a few extra As around 18 years later.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law and became effective on January 1, 2009. The implementation of the ADAAA made a number of significant changes to the definition of disability. The ADAAA also added to the ADA examples of “major life activities” including, but not limited to:
- Caring for oneself
- Performing manual tasks
They also included the operation of several specified major bodily functions. If we look at all of these criteria, it is not that surprising that alcoholism and drug addiction would qualify.
How Does Americans with Disabilities Act Help Addicts?
Addiction stigma is one of the hardest hurdles for most people to have to overcome when trying to find addiction treatment. A lot of people never even seek out the help because they are afraid their job or career would be jeopardized. But the ADA helps alcoholics and addicts by protecting them.
According to the Equal Employment Opportunity Commission’s (EEOC’s) Technical Assistance Manual: Title I of the ADA,
“A person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not ‘qualified.’ ”
While ADA regulations may permit allowances for alcoholism, illegal drug use is never protected. However, addicts who are recovering are protected under the ADA.
According to the EEOC’s manual:
“Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.”
So if you were to take a drug test and it shows that you are using an illicit substance you disqualify yourself from ADA protections.
How it Helps with Treatment
Fear of losing a job or sabotaging your financial future is a huge obstacle for most people who desperately need addiction treatment but are afraid to ask for help. Too many people think they will be black-listed or discriminated against for their struggles with drugs or alcohol. Breaking the stigma is essential to helping more people recover.
The ADA helps by treating alcoholics and addicts like people suffering from an illness or disability instead of punishing them. It protects your right to get help, as long as you don’t violate the policies of your profession. Therefore, it doesn’t necessarily protect people actively using drugs or alcohol. You can still face the consequences that come with it despite the ADA protections.
If you are attending a rehabilitation program, or you have successfully completed a program of rehabilitation, you are covered under the ADA. To find out more about these and other protections, look into the opportunities you are eligible for with the Family and Medical Leave Act of 1993 (FMLA) offered through your company.
Discrimination is always wrong, and discrimination against people recovering from substance use disorder is no different. People who suffer from drug or alcohol addiction need to be supported, especially when it comes to maintaining the aspects of their life that help them build a future. Know your rights and be aware of the protections in place so that you don’t put it off until it is too late. If you or someone you love is struggling with substance abuse or addiction, please call toll-free now.
CALL NOW 1-800-951-6135
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Author: Shernide Delva
As we all know by now, the amount of people who are suffering with drug addiction exceeds anything we have seen before. As a result, employers must learn how to handle employees who are struggling with drug addiction. According to NPR, people with addiction are more likely to be sick, absent, or use workers’ compensation benefits,. Therefore the question remains: Should employers have the right to fire an employee due to drug addiction, or should providing treatment always be a requirement?
A survey conducted in Indiana found that 80 percent of employers are impacted by prescription drug abuse and misuse. They also found that 64 percent of employers believed that prescription drugs like Vicodin and OxyContin were much more of a problem compared to illegal drugs.
Despite these statistics, only half of employers have a written policy on how to handle drug addiction in the workplace. Questions remain on how to handle employees who fall into addiction related problems. Three quarters of employers say drug abuse, specifically prescription drug abuse, is a justifiable reason for termination. Considering the emphasis in the past years on drug addiction being an illness and not a crime, employers question how to handle these cases. Furthermore, if an employee’s addiction interferes with their work obligations, should treatment still be offered or do employees have the right to terminate? Clearly, the laws are blurry on the manner.
The Steve Sarkisian Case: Was It Legal to Fire Him?
Addiction continues to be a complicated issue for employers to tackle. However, there are some established guideline. For example, the Americans with Disabilities Act (ADA) required employers to offer job protection for those suffering from alcoholism. Alcoholism is considered to be a kind of disabilities. Still, the exact legalities are confusing. This is exemplified greatly in the case involving USC football coach Steve Sarkisian. Sarkisian, who admits to suffering from alcoholism, believes strongly that he was wrongfully terminated due to his drinking.
According to Sarkisian, he states he was “kicked to the curb” last October when he sought in-patient treatment for alcoholism. According to the law, employers must follow federal and state discrimination guidelines. Alcoholism qualifies as a disability under the ADA guidelines. Those guidelines define a disabilities as “a physical or mental impairment that substantially limits one or more major life activities.” Therefore, Sarkisian should have been treated for his disability and not terminated.
However, while the ADA protects employees from being fired directly due to their alcoholism, it does not restrict termination due to alcoholism-related misconduct. Furthermore, constant lateness and intoxication on the job could deem a termination valid. Employers can also fire employees who do not meet up to the standards of the workplace as a result of their alcoholism.
Despite this clarification, Sarkisian believes he was terminated wrongfully. USC has responded to his allegations explaining that his termination was due to his behavior at a pep rally where he appeared drunk and used foul language with the audience. The former coach was allegedly too intoxicated to coach practice the next day. USC will cite these incidences to justify Sarkisian termination.
On the other hand, Sarkisian is suing for 30 million dollars because he believes USC violated ADA guidelines. In his defense, he stated that his employer should have made “reasonable accommodations” to meet guidelines. He believes that they were required to let him seek treatment. His lawsuit claims that USC violated ADA laws by firing him when he went to rehab.
Workplace addiction issues are increasingly common, whether it is alcohol-related to prescription drug addiction. Alcohol and drug problems among employees can be an expensive problem for business and industry. Such complications of drug addiction to employers include
- Lost productivity
- Absenteeism, injuries
- Low employee morale
- An increase in health care
- Legal liabilities
- Workers’ compensation costs.
If you suffer from any type of drug addiction, seek help before your behavior becomes unmanageable and jeopardizes your career. If you or someone you love is struggling with substance abuse or addiction, please call toll-free 1-800-951-6135.
If you are looking to go to rehab you probably have many different concerns, especially when it comes to your privacy. You may not want anyone such as future employers or school to know that you have had a problem with drugs and alcohol. This is where your health care rights come into play and it is a question that is very commonly asked; does rehab go on your record?
The answer is, as a patient in a rehab, one of your major rights is to have your rehab health record kept as private and confidential.
Unless you have specifically provided written consent for release of your medical records to a third party, your rehab health record and information will be kept confidential. It is completely understandable that you want to feel safe when deciding to sign up for rehab and part of that safety is knowing that your health record will be kept private. There are exceptions to the rule though. For instance if a court orders the release of your records, then you will have to share that information but for the most part you will not have to worry about anyone getting a copy of your rehab records unless you say it is alright.
The laws behind whether or not rehab goes on your record
- In the early 1970’s, Congress recognized that the stigma associated with substance abuse and fear of prosecution deterred people from entering treatment. So they enacted legislation that gave patients a right to confidentiality. For the almost three decades since the Federal confidentiality regulations were issued, confidentiality has been a cornerstone practice for substance abuse treatment programs across the country and are what you probably know as HIPPAA laws or the HIPAA Privacy Rule.
The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically such as rehabs. The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patient’s rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections.
- The federal Public Health Services Act includes comprehensive privacy rules that protect the confidentiality of rehab records. Established by Congress in part to encourage substance abusers to seek treatment, the regulations are some of the most protective confidentiality rules in federal law.
One the biggest laws that protects your rights as a rehabilitated addict is the American With Disabilities Act or ADA.
The ADA provides that any employee or job applicant who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” Therefore, an employee who illegally uses drugs, whether the employee is a casual user or an addict, is not protected by the ADA if the employer acts on the basis of the illegal drug use. As a result, an employer does not violate the ADA by uniformly enforcing its rules prohibiting employees from illegally using drugs. However, “qualified individuals” under the ADA include those individuals:
- who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs
- who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs
- who are regarded, erroneously, as illegally using drugs.
An employer may make certain pre-employment, pre-offer inquiries regarding use of alcohol or the illegal use of drugs. An employer may ask whether an applicant drinks alcohol or whether he or she is currently using drugs illegally. However, an employer may not ask whether an applicant is a drug abuser or alcoholic, or inquire whether he or she has ever been in rehab.
If you or someone you love is looking for a drug rehab, please give us a call at 800-951-6135.