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Disability And
Alcohol |
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| What Medical
Tests or Inquiries are Permitted to Determine Whether an Individual
has a Drug or Alcohol Problem? |
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The permissible scope of
medical tests and inquiries depends upon whether an employer is
seeking information, on the one hand, about a current drug impairment
or a current or past alcohol impairment or, on the other, past drug
impairment. Because the current illegal use of drugs is not a
protected disability, employers can obtain information about drug use
that they could not otherwise get about other disabilities.
For example, employers may ask a job applicant about current illegal
use of drugs prior to a conditional offer of employment. They may also
ask an employee about current illegal use of drugs at any time without
showing that the inquiry is job related or required by business
necessity. Finally, the ADA explicitly states that a test to detect
the illegal use of drugs is not considered a medical examination, and,
therefore, drug tests may be given prior to a conditional offer of
employment or at any time in an employee's tenure.
Employers must be careful, however, in conducting a drug test prior to
a conditional offer of employment because the drug test could reveal
information about other disabilities that applicants have a right to
withhold until after an employment offer. For example, a drug test
could reveal the presence of dilantin, which is used to treat
epilepsy, or methadone, which is used to treat heroin addiction. If
such protected information is obtained, employers cannot use such
information in a way that violates the ADA. The ADA also requires that
information collected from medical examinations and inquiries be
collected and maintained on separate forms and in separate medical
files and treated as a confidential medical record.
Inquiries about alcohol use or past drug use, on the other hand, must
be treated like inquiries about any other disability. Such inquiries
cannot be made of applicants until after a conditional offer of
employment or of employees except when job related or required by
business necessity. In addition, urine or breath tests that detect the
use of alcohol cannot be done prior to a conditional offer of
employment or cannot be required of an employee unless the test is job
related and required by business necessity. |
What Can an Employer Do To Ensure that an Individual is No Longer
Using Drugs? |
The ADA permits employers to
take reasonable steps to ensure that an individual is no longer
illegally using drugs. Employers are permitted to conduct drug tests
and to obtain information from treatment programs in order to monitor
drug use. If an employer has an employee assistance program (EAP), the
EAP may be the best entity to conduct the follow-up.
While the ADA does not impose many restrictions on drug testing,
employers are required to use accurate test procedures and to comply
with any federal, state, or local law that regulates drug testing.
In addition, when seeking information from a drug or alcohol treatment
program about an individuals rehabilitation, employers should be
aware that federal regulations govern the release of drug and alcohol
patient information by virtually all treatment programs. (2)
These regulations, in order to protect the confidentiality of
individuals with drug and alcohol problems, require the execution of a
detailed consent form before employers can receive treatment
information and place strict limitations on the employers use,
maintenance and redisclosure of that information. Because these
regulations impose more stringent confidentiality standards than those
in the ADA, they supersede the ADA's requirements for protection of
drug and alcohol treatment information. |
What Accommodations Do Individuals With Drug and Alcohol Problems
Need? |
| Accommodations for
individuals in recovery from a drug or alcohol problem will vary
depending upon the requirements of their jobs and their length of time
in recovery. For example, individuals who have recently completed a
rehabilitation program may need to participate in a structured,
out-patient continuing care program on a regular basis. Others who
have been sober for a long time will participate in self-help groups,
such as Alcoholics Anonymous, for the rest of their lives in order to
prevent relapse. Involvement in such continuing care may require some
accommodation. |
Examples of necessary accommodations could include: |
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• A modified work
schedule to permit an employee to pick up her daily methadone
dosage or to attend an out-patient relapse prevention counseling
session.
• Job restructuring to relieve an employee of particular marginal
tasks that may compromise recovery or be inappropriate in the
early stages of recovery.
• Temporary reassignment of an employee in a safety-related
position to a vacant non-safety sensitive position while he or she
completes treatment. |
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In addition, because individuals with current alcohol impairments are
protected against discrimination to the extent they can perform their
job effectively and safely, employers are required to consider
providing unpaid leave to permit an individual with a current alcohol
impairment to attend an in-patient treatment program. In addition, if
an employer provides paid leave to individuals who are obtaining
medical treatment for a disability, the employer must provide the same
benefit to an individual who is obtaining treatment for an alcohol
problem.
Some employees will need no accommodation, but simply a change in
attitude regarding what an individual with a past drug or alcohol
impairment can do. It is important to understand that such individuals
are able to perform all jobs safely, including safety-related jobs,
and that they pose no risk to others solely because of a past drug or
alcohol addition. An employers most important obligation under the
ADA is to evaluate the individuals ability to do the essential job
tasks and make employment decisions based on the individuals
qualifications and work performance. |
2. Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R.
Part 2. |
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