ADA and Addiction
Individuals who are working to recover from addictions such as alcoholism and substance use disorders are generally considered to be people with disabilities who are protected under the ADA. While the law excludes from protection those who are currently engaged in illegal drug use, those who are not currently engaged in such use should not be discriminated against based on their addictions. People who experience alcoholism are similarly protected, regardless of whether they currently consume alcohol.
Because the consumption of alcohol is not illegal for adults, alcoholics do not need to refrain from drinking to be protected under the ADA. However, they can be held to valid standards of conduct in employment or programs that require sobriety. For example, an employer does not have to allow an employee with alcoholism to drink or to be under the influence of alcohol at work, and the employer can expect compliance with legitimate, consistently applied job performance requirements.
Substance Use Disorders
The Illegal use of drugs, which includes using prescription medications in an illegal manner (e.g., taking higher doses than prescribed or taking someone else’s medication), is addressed differently under the ADA. Covered entities may consistently take actions based on illegal drug use. For example, employers can refuse to hire applicants who fail tests for illegal drug use, regardless of whether or not the individual could perform the job. However, care should be taken to distinguish between test results that reveal illegal use of drugs and legal use of medications. Many people appropriately, legally take a variety of medications to treat a broad range of conditions, including addictions.
Recent years have seen a spike in opioid addictions, and a resultant increase in the numbers of individuals working to recover from those addictions. Unfortunately, we have also seen claims that entities covered by the ADA engaged in discrimination based on outmoded opinions about people with addictions and/or uninformed judgments about the appropriateness of using medications to treat their conditions. Federal agencies have filed several lawsuits and entered settlement agreements to enforce provisions of the ADA that seek to ensure people with disabilities, with the advice of their doctors, can choose effective treatment options without experiencing exclusion and denial of opportunities based on stereotypes and bias. Recent examples in our region include:
An employer in West Virginia rescinded a job offer upon learning of the applicant’s use of Suboxone to treat her opioid use disorder (OUD). According to the U.S. Equal Employment Opportunity Commission (EEOC), the employer made its decision based on generalized information about possible side effects of Suboxone, without any individualized assessment of the applicant. The employer agreed to pay $60,000 to the applicant, establish policies to ensure individualized assessments of the abilities of applicants and employees with disabilities, train staff, and appoint a compliance monitor within the company. See the EEOC's press release.
The U.S. Department of Justice (DOJ) has entered several settlement agreements with health care providers across the country to resolve allegations that patients were refused admission or denied treatment based on their OUDs and/or use of medication-assisted treatments. Most of these agreements require the health care providers to revise policies and practices, implement extensive staff training programs and record-keeping procedures, and in many cases, pay damages to complainants and civil penalties to the United States. An example in our region is the agreement with Selma Medical Associates, Inc., a private medical practice that provides primary and specialty care in Virginia.
The West Virginia Department of Health and Human Resources (DHHR) entered a voluntary resolution agreement with the Office of Civil Rights in the U.S. Department of Health and Human Services (OCR/HHS) to address allegations that the DHHR discriminated against an aunt and uncle who wanted to adopt their niece and nephew, who were in the custody of the state. The DHHR allegedly denied permission for the adoption because the uncle received Suboxone treatment to support his recovery from OUD. See the OCR/HHS press release.
The Pennsylvania court system, according to the U.S. DOJ, subjected individuals under court supervision to policies that limited or prohibited the use of medications to treat their OUDs, resulting in denial of court program benefits, as well as increased risks to the health and lives of individuals who attempted to comply with court-ordered requirements to discontinue their disability-related medications. See DOJ’s press release and the complaint filed in the U.S. District Court for the Eastern District of Pennsylvania.
Note that the DOJ is interested in hearing from additional individuals who believe that a Pennsylvania court prohibited or limited their use of lawfully prescribed medication to treat OUDs; email PennCourts.OUD@usdoj.gov.
Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division said “people with opioid use disorder … are too often subject to discrimination rooted in stereotypes and myths rather than in science” and “deserve access to medications needed to support their recovery and to break the cycles of addiction.”
Resources: EEOC Technical Assistance Documents on Opioid Addiction and Employment