Federal civil rights laws prohibit discrimination in many areas of life against qualified “individuals with disabilities.” Many people with past and current alcohol problems and past drug use disorders, including those in treatment for these illnesses, are protected from discrimination by:
• The Americans with Disabilities Act (ADA)
• The Rehabilitation Act of 1973
• The Fair Housing Act (FHA) and
• The Workforce Investment Act (WIA).
This course will specifically focus on the ADA and how its provisioning impacts those in the recovery of alcohol and other drugs.
The Americans with Disabilities Act (ADA), which was signed into law on July 26, 1990, is the nation’s first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications. The ADA assures equality of opportunity, full participation, independent living, and economic self-sufficiency to persons with disabilities.
The Five Titles of Americans with Disabilities Act
I – Employment
Title I states that businesses must provide reasonable accommodations to protect the rights of individuals with disabilities in all aspects of employment. These include but are not limited to hiring, promotion and transfers, discharges, wages, job training, benefits, and job description.
II – Public Services
Title II prohibits discrimination against all subdivisions of State and Local Government.
III – Public Accommodations
Title III prohibits discrimination by a private business serving the public.
IV – Telecommunications
Title IV prohibits discrimination in public communications.
V – Miscellaneous Provisions
Title V applies to miscellaneous provisions that apply to The United States Equal Employment Opportunity Commission’s enforcement of Title I.
WHO IS PROTECTED?
Under these federal laws, an individual with a “disability” is someone who:
– has a current “physical or mental impairment” that “substantially limits” one or more of that person’s “major life activities,” such as caring for one’s self, working, etc.
– has a record of such a substantially limiting impairment or
– is regarded as having such an impairment.
Whether a particular person has a “disability” is decided on an individualized, case-by-case basis.
Substance use disorders (addiction) are recognized as impairments that can and do, for many individuals, substantially limit the individual’s major life activities. For this reason, many courts have found that individuals experiencing or who are in recovery from these conditions are individuals with a “disability” protected by Federal law.
To be protected as an individual with a “disability” under federal nondiscrimination laws, a person must show that their addiction substantially limits (or limited, in the past) major life activities.
People wrongly believed to have a substance use disorder (in the past or currently) may also be protected as individuals “regarded as” having a disability.
WHO IS NOT PROTECTED?
People who currently engage in the illegal use of drugs are not protected under these nondiscrimination laws, except that individuals may not be denied health services (including drug rehabilitation) based on their current illegal use of drugs if they are otherwise entitled to those services.
People whose use of alcohol or drugs poses a direct threat—a significant risk of substantial harm—to the health or safety of others are not protected.
People whose use of alcohol or drugs does not significantly impair a major life activity are not protected (unless they show they have a “record of” or are “regarded as” having a substance use disorder—addiction—that is substantially limiting).
WHAT IS AND IS NOT ILLEGAL DISCRIMINATION?
Discriminating against someone based on their disability—for example, just because he has a past drug addiction or she is in an alcohol treatment program—may be illegal discrimination. Discrimination means treating someone less favorably than someone else because they once have or are regarded as having a disability.
Acting against a person for reasons other than having a disability is not generally illegal discrimination, even if the disability is related to the cause of the adverse action. For instance, it is not likely to be ruled unlawful discrimination if someone in substance abuse treatment or recovery is denied a job, services, or benefits because of he:
– does not meet essential eligibility requirements
– is unable to do the job
– creates a direct threat to health or safety by his behavior, even if the behavior is caused by a substance use disorder
– violates rules or commits a crime, including a drug or alcohol-related one, when that misconduct is cause for excluding or disciplining anyone doing it. Since the basis for the negative action in these cases is not (or not solely) the person’s disability, these actions do not violate federal nondiscrimination laws.
The Americans with Disabilities Act and the Rehabilitation Act prohibit most employers from refusing to hire, firing, or discriminating in the terms and conditions of employment against any qualified job applicant or employee based on disability.
If someone’s job performance has declined because of drug or alcohol use, the employer has the right to fire the employee if they can prove that the performance declined. The employer also has the right to test for drugs and fire for drug use.
Keep in mind that the ADA does not protect individuals who are actively using drugs from being fired. The employer has the right to test employees for drugs and fire them if they are found to be using them. Consequently, it is in your best interest to enter a drug or alcohol rehab program as soon as possible since the ADA will only protect you if you are in a treatment program and seeking recovery.
• The ADA applies to all State and local governmental units and private employers with 15 or more employees.
• The Rehabilitation Act applies to Federal employers and other public and private employers who receive Federal grants, contracts, or aid. Rights In general, these employers
• May not deny a job to or fire a person because he or she is in treatment or recovery from a substance use disorder unless the person’s disorder would prevent safe and competent job performance.
• Must provide “reasonable accommodations” when needed to enable those with a disability to perform their job duties. Changing work hours to let an employee attend treatment is one kind of reasonable accommodation. (But if an accommodation would cause the employer undue hardship—significant difficulty or expense—it is not required.)
• Must keep confidential any medical-related information they discover about a job applicant or employee, including information about a past or present substance use disorder. Limits The nondiscrimination laws protect only applicants and employees qualified for the job who currently are not engaging in the illegal use of drugs.
• “Qualified” means that a person meets the basic qualification requirements for the job and can perform its essential functions—fundamental duties—with or without reasonable accommodation.
• Remember: people who pose a direct threat to health or safety, or have committed misconduct warranting job discipline, including termination, are not protected. Medical Inquiries & Examinations As a general rule, employers:
• May not use the information they learn about an individual’s disability in a discriminatory manner. They may not deny or treat anyone less favorably in the terms and conditions of employment if they are qualified to perform the job.
• Must maintain the confidentiality of all information they obtain about applicants’ and employees’ health conditions, including addiction and treatment for substance use disorders. Before making a job offer, employers may not ask:
• Questions about whether a job applicant has or has had a disability or about the nature or severity of an applicant’s disability. Pre-offer medical examinations also are illegal.
• Whether a job applicant is or has ever abused or been addicted to drugs or alcohol, or if the applicant is being treated by a substance abuse rehabilitation program, or has received such treatment in the past.
Employers may ask job applicants:
• Whether the applicant currently is using drugs illegally
• Whether the applicant drinks alcohol
• Whether the applicant can perform the duties of the job. After making a job offer, employers may:
• Make medical inquiries and require an individual to undergo a medical examination (including ones that reveal past or current substance use disorder), as long as all those offered the position are given the same exam.
• Condition employment on the satisfactory results of such medical inquiries or exams. After employment begins, employers may make medical inquiries or require an employee to undergo a medical examination, but only when doing this is job-related and justified by business necessity. Such exams and inquiries may be permitted if the employer has a reasonable belief, based on objective evidence, that an employee has a health (including substance use-related) condition that impairs his or her ability to perform essential job functions or that poses a direct threat to health or safety. Workplace Drug Testing
• Employers are permitted to test both job applicants and employees for illegal use of drugs and may refuse to hire—or may fire or discipline—anyone whose test reveals such illegal use. • Employers may not fire or refuse to hire any job applicant or employee solely because a drug test reveals the presence of a lawfully used medication (such as methadone).
• Employers must keep confidential information they discover about an employee’s use of lawfully prescribed medications.
As mentioned above, the ADA imposes an affirmative duty on the employer to make reasonable accommodations for qualified now employees with disabilities. This affirmative duty requires that employers take special action (make “reasonable accommodations”) to assist a disabled employee in doing her job. The ADA requires very little of the employee to trigger the employer’s duty to engage in the interactive process of accommodating. All the employee has to do is notify the employer of her disability. Once notification is given, the burden of offering and finding accommodations rests on the employer. This notification of disability requires that the employer asks further questions to search for reasonable accommodation. The ADA requires an employer to consider reassignment as one accommodation if the employee cannot perform his job.
Direct Threat Posed by Substance Abuse
The defense of “direct threat” is frequently raised by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” Moreover, an employer may institute such a requirement even if an employer’s reliance on such a qualification might “screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability.”
The determination that an individual with a disability poses a direct threat should be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. In determining whether an individual would pose a direct threat, the factors to be considered include:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
Evidence used in making the determination may include information from the individual, including the individual’s experience in previous similar situations and the opinions of doctors, rehabilitation counselors, or physical therapists who have expertise in the specific disability or who have direct knowledge of the individual.
Moreover, an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”
Title V (Miscellaneous Provisions)
Title V contains a variety of provisions relating to the ADA as a whole, including its relationship to other laws, state immunity, its impact on insurance providers and benefits, the prohibition against retaliation and coercion, illegal use of drugs, and attorney’s fees. This title also provides a list of specific conditions that are not to be considered disabilities.
Title V explicitly prohibits retaliation against people exercising their rights under the ADA. It sets forth specific responsibilities for the adoption of enforcement regulations by federal agencies.
Some of the significant provisions of Title V include:
- The ADA does not invalidate or override any other laws (federal, state, or local) that provide equal or greater protections or remedies for people with disabilities.
- Exclusion of certain conditions, regardless of whether they are impairments, from the definition of disability. These conditions include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs. Homosexuality and bisexuality, since they are not impairments, cannot be considered disabilities under the ADA. Additionally, people who are currently engaged in illegal drug use are excluded from protection under the ADA.
- Retaliation, intimidation, coercion, threats, or interference with people who seek to exercise their rights or who encourage or aid others to do so is prohibited. It is important that these provisions also protect people without disabilities if they do things like an advocate or testify on behalf of individuals with disabilities.
- An individual cannot claim “reverse discrimination” under the ADA; in other words, an individual can not seek remedies if they feel they were discriminated against because they do not have a disability.
- A clause of “severability” states that if any part of the law is found by a court to be unconstitutional, that part is cut from the whole without affecting the remaining parts.
- Certain federal agencies are directed to develop plans, produce materials, and disseminate information to provide technical assistance to entities and individuals with rights and responsibilities under the law. Covered entities are not excused from compliance; however, if they do not receive technical assistance.
- The extension of coverage to the U.S. Congress makes it the only federal government branch covered by the ADA.
Legal Obligations and Expectations
The following is an overview of the current legal obligations for employers and employees:
- An individual who is currently engaging in the illegal use of drugs is not an “individual with a disability” when the employer acts based on such use.
- An employer may not discriminate against a person with a history of drug addiction but who is not currently using drugs and has been rehabilitated.
- An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
- It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
- An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
- Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.
- Employees may be required to follow the Drug-Free Workplace Act of 1988 and federal agencies’ rules for drug and alcohol use in the workplace.
We have learned that individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. Courts have usually held that alcoholism is a covered disability. For example, in Williams v. Widnall, the court flatly stated, without discussion, that alcoholism “is a covered disability.”
Some courts have questioned whether alcoholism should automatically be designated as a covered disability. For example, in Burch v. Coca-Cola, the court held that alcoholism is not a per se disability and found that the plaintiff’s alcoholism was not a covered disability because it did not substantially limit any of his major life activities. Throughout history, the course has been consistent that an “individualized inquiry” will be conducted to determine whether an impairment “substantially limits” a major life activity. This makes it a difficult area to navigate.
A “disability” exists only where an impairment “substantially limits” a major life activity, not where it “might,” “could,” or “would” be substantially limiting if corrective measures were not taken.
Four Steps Toward ADA Compliance
Privately operated alcohol and drug programs must take action to overcome four fundamental groups of barriers to comply with ADA requirements and provide people with disabilities an equal opportunity to benefit from services. They are as follows:
Discriminatory policies, practices, and procedures
Step One: Changing Attitudes That Prevent Access to Alcohol and Drug Programs for Persons With Disabilities
An attitudinal barrier to substance abuse intervention and treatment can be defined as a way of thinking or feeling that results in limiting the potential of people with disabilities to function independently within society and to be “treatable” and recognized as wanting help with their substance abuse problems.
To make ADA compliance efforts truly successful, alcohol and drug program staff must have the skills and the willingness to respond to the needs of clients with disabilities. Staff training is key to overcoming attitudinal barriers that prevent people with disabilities from receiving equally effective alcohol and drug treatment services.
Step Two: Revising Policies, Practices, and Procedures To Ensure Access
Access for people with disabilities is often thought of in terms of physical access to the built environment. Most people understand the need for ramps, curb cuts, and parking spaces for people with disabilities. What many do not consider are the nonphysical barriers to people with disabilities–policies, practices, and procedures that discriminate or tend to discriminate based on disability. We can’t see these “administrative barriers,” but they impact people with disabilities as physical ones.
The ADA sets forth a substantial number of requirements to protect people with disabilities from administrative barriers. It is necessary for alcohol and drug programs to review existing policies, practices, and procedures and adopt new ones to avoid discrimination and ensure compliance with ADA requirements.
Programs may not refuse to admit people solely based on disability. Blanket policies, practices, and procedures that prohibit the participation of people with disabilities are discriminatory.
Alcohol and drug programs should not presume that an individual or class of individuals with a disability can or cannot participate in any aspect of a program. An essential step in ensuring nondiscrimination based on disability is to establish procedures by which each individual is evaluated based on their unique needs and abilities.
Even if architectural or communications barriers seemingly prevent program access for people with specific disabilities, the program must give each individual with a disability an opportunity to determine whether they can function within the program’s constraints.
Inquiries regarding disability made before acceptance into an alcohol or drug program are generally unnecessary and should not be made. Once a person has been accepted into the program, necessary inquiries can be made regarding special accommodations that an individual may need. Application forms, consent forms, and other documents where such questions are made should be reviewed and revised accordingly.
Programs should have a written policy and procedure in place to ensure that records about a client’s disability are kept confidential and not used in a discriminatory fashion.
ADA compliance measures may result in an additional cost for serving clients with disabilities. Alcohol and drug programs may raise the fee for all clients, but they may not place a surcharge on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.
Step Three: Understanding Is Everything–Overcoming Communications Barriers
The ADA requires alcohol and drug programs to ensure that communications with people with disabilities are as effective as communications with others. Communications conducted by alcohol and drug programs include outreach, education, prevention efforts, intake interviews, group meetings, counseling sessions, telephone and mail communications, and the provision of medical services. Communication barrier removal is crucial for people who are deaf or have hearing, speech, visual, and learning disabilities.
If your program advertises its services, then such advertisements should be made in a sufficient variety of formats to ensure access to people with disabilities. For example, radio advertisements are not accessible to the deaf, and newspaper advertisements are not readily accessible to the blind. Only with a combination of the two would both communities be reached. In addition, programs should make an effort to contact those media resources that are frequently used by the disabled community.
Programs should include the following in all outreach, prevention, and other materials that they produce:
A statement of the program’s responsibilities under the ADA and its commitment to provide effective communication to people with disabilities.
A description of the accommodations and resources that the program has available for people with disabilities.
No new or existing outreach, prevention, or other material produced by the program should contain any discriminatory language or representation of people with disabilities. Programs should also take steps to ensure that no material produced by others, but distributed by the program, contains any discriminatory language or representation of people with disabilities.
It may be an unwieldy task for a program to review the materials it currently distributes. As an alternative, programs may choose to establish a procedure by which persons can file a complaint if they find any material to be discriminatory against people with disabilities. A complaint review procedure should be established. Remedies may include discontinuing the use of the material or removing the discriminatory portion of the material.
Step Four: Physical Access
Certain architectural features, such as bathrooms and meeting rooms, must be made accessible. In many cases, however, alternative measures to barrier removal can narrow the scope of renovation required while providing equivalent program access for persons with disabilities.
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