No, You Can’t Fire Someone Because They Need SUD Treatment
HR execs be aware, you cannot fire an employee because they need substance use disorder (SUD) treatment.
With the Substance Abuse and Mental Health Services Administration (SAMHSA) reporting that almost 11 million full-time workers in the United States have substance abuse disorder (SUD), it’s critical that employers understand the laws surrounding SUDs at work. Employees with SUD are protected by two federal laws: the Americans with Disabilities Act (ADA); and the Family Medical Leave Act (FMLA).
While Title I of the Americans with Disabilities Act permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, the law states that an employer may not discriminate against a person who has a history of drug addiction but who is not currently using drugs and who has been rehabilitated. Nor can they discriminate against an employee who is currently participating in a rehabilitation program for drugs. With regards to alcohol use, employees who abuse alcohol may be considered disabled under the ADA if they are an alcoholic or a recovering alcoholic and therefore their SUD is a covered disability. A disability is generally defined as an impairment that “substantially limits” a major life activity. The ADA requires that an employer give a “reasonable accommodation” to an employee who can demonstrate that they are substantially limited in a major life activity. Of course the ADA is a complex law and it also states that an employer can hold employees who use drugs or alcohol to the same standards of performance and conduct that are set for other employees. The law can be found in detail here.
Then there is the Family Medical Leave Act of 1993 (FMLA). This law allows eligible employees, at eligible companies, to take up to 12 work weeks of unpaid leave during any 12-month period to care for a new child, care for a seriously ill family member, or recover from a serious illness. Under FMLA, Substance Use Disorders (SUDs) qualify as a serious illness. Therefore, a person who takes FMLA leave to treat a SUD can’t be fired. More details on FMLA can be found here.
An employee can however be fired for using drugs or alcohol during work, or for lapses in work performance related to using drugs or alcohol. And as we’ve written previously, that may seem reasonable at first glance, but is it?
These employment rules about SUDs are wrong because they reflect our incorrect perception of SUDs. “We perceive people struggling with drug and alcohol problems as lazy hedonists, as bad people lacking in discipline. In fact, most are good people struggling with a mental health problem. We punish them for self-medicating with the only medications available to them without treatment. But we don’t punish them for getting treatment.”
The good news for employers who want to do the right thing, is that prevention and treatment programs have been proven to be effective in improving worker productivity among employees with SUD. When employees get help, the Journal of Substance Abuse Treatment reports that unplanned absences decrease by 85 percent and discipline problems decrease by 75 percent.
More good news is that treatment options exist that are easily accessible to employees. Telehealth, for example, is one of the most effective ways to reach and treat people with SUDs. It’s also one of the most effective ways to support recovery. With a telehealth solution, people can seek and receive treatment from the privacy of their home or even a quiet conference room. Receiving treatment from a private, comfortable and familiar setting, reduces a major barrier to seeking help. And it’s flexible and doesn’t require time commuting to and from treatment, making it a realistic option for employees.
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