As the U.S. Equal Employment Opportunity Commission’s fiscal year comes to a close, the agency has filed a slew of discrimination lawsuits. One that caught my eye involves an employer that allegedly rescinded an offer of employment once it found out that the individual was using prescription drugs to treat his prior heroin addiction.
Wait a minute! Can’t you terminate someone who has abused drugs?
Not so fast.
Prior drug addiction can be a “disability” under the Americans with Disabilities Act.
Under the Americans with Disabilities Act, an individual with a disability is a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Is regarded as having such an impairment; or
- Has a record of such an impairment.
Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of an “individual with a disability.” However, the ADA does protect a former addict in recovery. That’s because the individual has a record of an impairment (i.e., the addiction to drugs). If that individual presently uses prescription drugs to treat for the prior addiction, well, for ADA purposes that’s no different that someone who uses prescription drugs to control high blood pressure.
There’s still an underlying disability protected under the ADA.
So, focus on the underlying disability and the ability to perform the essential functions of the job.
It should come as no surprise that the EEOC has sued a Maryland employer for allegedly revoking an offer of employment upon discovering that the individual is a recovering drug addict (who has not used illegal drugs and has been enrolled in a supervised medication-assisted treatment programs since 2010) and currently takes prescription drugs to treat the underlying drug addiction.
Now, remember that there may be any number of legitimate reasons why the employer actually rescinded the offer. Still, this lawsuit serves as a wakeup call to employers to tread carefully when considering an employment action involving an individual who has a history of drug use, but may now be clean and sober.