If you hire someone who says they are in a drug treatment program, don’t do this…

The Americans with Disabilities Act prohibits discrimination based on a disability concerning employment. That includes refusing to hire someone based on an actual disability, a perceived disability, or a record of disability.

Whether an employer regards a job applicant as having a disability or learns about a record of a disability, an employer cannot lawfully refuse to hire them because they are receiving addiction treatment — even if that means the individual is currently in a methadone maintenance program.

A federal court emphasized that point in this brief opinion.

The plaintiff alleged that she had been prescribed a methadone maintenance program for several years with no issues or relapses. She applied for and received an offer of employment as a banquet bartender, a position for which she had over 20 years of experience.

Approximately one week later, the plaintiff claimed that she met with the defendant’s hiring manager to complete pre-employment paperwork when the hiring manager mentioned that the employer would drug test the plaintiff, as was its practice with all new hires. So the plaintiff disclosed that her physician had prescribed her a methadone maintenance treatment plan and offered to provide her physician’s certification.

According to the plaintiff, the hiring manager initially expressed no concerns. However, the hiring manager allegedly informed the plaintiff later that the defendant was rescinding its offer of employment since the plaintiff would not be able to “pass [the] drug test with flying colors.”

If true, is this an ADA violation? You bet it is, said the court:

Refusing to hire someone on the basis of a disability or a perceived disability violates the ADA. Although individuals who are currently using illegal drugs are not covered by the Act … this exclusion does not apply to those who are recovering from drug addiction by, for example, taking methadone as legally prescribed by their physicians… Thus, an employer who has a blanket policy of requiring all applicants to take a drug test (which they “had to pass or else”) and then rejecting those who tested positive for methadone, without further inquiry, would violate the ADA. 

The ADA does not prevent employers from testing applicants or employees for current illegal drug use or from making employment decisions based on verifiable results. However, employers cannot ask job applicants about the use of prescription drugs (and should only ask current employees when “job-related and consistent with business necessity.”)

When an applicant self-identifies as using prescription drugs that would trigger a positive drug test result, the employer can request medical documentation. Under the ADA, an employer cannot take an adverse employment action because an employee is in medication-assisted treatment unless they cannot do the job safely and effectively or another federal law disqualifies them. Additionally, the employer may need to provide a reasonable accommodation if the individual has an underlying disability.