The election is now over and history has been made by Washington and Colorado, the first states to legalize the recreational use of marijuana. And prior to that, our state was already one of 16 to have legalized medical marijuana.
Drugs and alcohol and the workplace: How do we as employers handle the tricky issues that arise as laws collide?
Does the Americans with Disabilities Act cover substance abuse problems?
The Americans with Disabilities Act (ADA) provides protections to those who meet the definition of having a “disability.” Does this include those who have substance abuse problems? As I often say in my articles, the answer is yes and no.
Alcohol & the Americans with Disabilities Act:
Alcoholism is treated as a disability under the ADA.
A test for alcohol is considered a medical examination under the ADA — an important distinction when compared to a test for illegal drugs. Therefore, you may only test an employee for alcohol if you have reasonable suspicion that they are under the influence while at work.
The other point to keep in mind is that since alcoholism is a disability under the ADA, the employee is entitled to reasonable accommodation.
Here are some important things to be aware of regarding reasonable accommodation:
- The law doesn’t require you to accept poor performance or conduct just because an employee is an alcoholic.
- You absolutely have the right to ban the use of alcohol in the workplace (in fact, Washington law requires you to do so).
- The law does require you to accommodate an employee who makes a reasonable request. Possible accommodation could be allowing an employee to leave early to attend AA meetings, or giving them a leave of absence to enter a treatment program.
Drugs & the Americans with Disabilities Act:
Many of our employers conduct pre-employment drug tests. These are not medical exams under the ADA, and addiction to illegal drugs is not considered a disability under the ADA.
However, employees utilizing prescription drugs to treat a disability are protected under the ADA and must be accommodated.
For example, an employee could reveal their need to use a prescription medication that inhibits their ability to drive. In this instance, a reasonable accommodation could be to pair them with a co-worker they can ride with to meetings or events, or to allow them to participate via teleconferencing whenever possible.
Medical marijuana & the Americans with Disabilities Act:
How does medical marijuana fit in?
A couple years ago, a Bremerton company, Teletech, refused to hire a job seeker who disclosed that she had a prescription for medical marijuana, and who consequently failed her pre-employment drug test.
This carefully watched case wound its way through out courts. The final result was a ruling which basically stated that the use of marijuana, albeit with a medical prescription, was still the use of a drug which was illegal on the federal level. Therefore, the employer had the right, under its drug free workplace policy, to not hire an employee who tested positive for the use of illegal drugs.
There have been several other court cases challenging these practices, and the courts have consistently upheld businesses’ rights.
Recently, the liberal Ninth Circuit Court of Appeals rejected a petition to rehear an argument that medical marijuana is protected by the ADA. The court recognized the evolving views on the acceptability of medical marijuana, but in the end, stated that “Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use.” Therefore, it was not accorded protection under the ADA.
What does Washington’s legalization of marijuana mean for employers?
Washington voters have now created an even more complex situation for employers by passing Initiative 502, legalizing the use of recreational marijuana. While the initiative requires the state to define what constitutes impairment under the law, the fact remains that marijuana is still illegal at the federal level.
On December 6th, residents of Washington state will have the right to use recreational marijuana. Employers need to decide now how they will approach this.
If your business does drug testing, how will you view a positive result for marijuana? Will you give marijuana using employees and applicants a pass, or will marijuana usage be a bar to employment?
If it’s the latter, consider informing your employees now so they are aware of the consequences. You may also need to revise your employee handbook to include information about marijuana usage. Letting your job applicants know your company’s policy upfront could prevent you from wasting your money on pre-employment drug tests that come back positive for marijuana usage.
Currently, we can only speculate on whether the new law will change what employers can require of their employees, but it is logical to expect that the courts will apply the same principles to the usage of recreational marijuana and employment as they have to medical marijuana.
Until this is resolved, it appears that employers may continue their practice of weeding out applicants and employees who test positive for THC.
Things for businesses to keep in mind regarding employee drug & alcohol use:
The ADA does provide protection to recovering alcoholics and drug addicts. This means that employers cannot discriminate against someone based on their past usage of drugs or alcohol.
For example, an employer learns that an employee is a recovering drug addict, and based on that information, passes over him for a promotion to manager, fearing that the increased stress would cause a relapse. This could be illegal discrimination under the ADA.
Any time that an employer deals with information regarding an employee’s medical history, it is imperative that this information be kept confidential and separate from their employment records. This includes information about drug and alcohol tests. Share the information and test results with others on a need-to-know basis only.
Worker safety, employee privacy, personal health, team productivity, employer liability, government regulations: the list of concerns and rights seems almost endless as we ponder the issues surrounding alcohol, drugs, and the workplace.
One thing, though, seems almost certain: lawyers will be kept very busy over the next couple years as we sort these issues out!