Getting fired for going to rehab is a legitimate concern for those struggling with drug addiction or alcoholism. In fact, fear over workplace discrimination may be a principle reason why many individuals do not get the help they need even when treatment is readily available and covered by their health insurance. The good news is that workplace discrimination of this type is prohibited by federal law in many cases. The civil rights laws that protect against such discrimination are in the following 6 Federal Acts:
*The Americans with Disabilities Act (ADA) of 1990
*The Rehabilitation Act of 1973
*The Workforce Investment Act (WIA)
*The Fair Housing Act (FHA)
*Health Insurance and Portability Act of 1996
*Family and Medical Leave Act of 1993
Individuals with a “Disability” & the ADA
The Americans with Disabilities Act is designed to protect people with many different types of disabilities. Under the Act a disability is generally defined as “…a physical or mental impairment that substantially limits a major life activity;” such as basic hygiene, cooking & cleaning, working a regular job, etc. Substance abuse disorders are recognized as disabilities and therefore may be protected by this Federal Act.
However, the merits of each disability case are determined on an individual basis, so it’s important to understand how the Act applies to your particular case. You can review the entire Act here: http://finduslaw.com/americans-disabilities-act-1990-ada-42-us-code-chapter-126
The Americans with Disabilities Act and the Rehabilitation Act prohibit most employers from refusing to hire, fire or discriminate against any otherwise qualified applicant or current employee on the basis of a disability. The ADA applies to all private enterprises employing 15 or more people and all State and local governmental entities. The Rehabilitation Act applies to all entities who receive Federal grants, contracts and aid.
In general, these employers may not deny a job or fire an individual because s/he is receiving treatment or is in recovery from a substance abuse disorder. This includes substance abuse for alcohol and drugs like heroin, cocaine and meth. The only exception is if that disorder prevents competent and safe job performance, then the employee can be terminated, refused or transferred.
Employers must also provide reasonable accommodations when necessary to enable people with a disability to perform their job duties. They also have to maintain confidentiality about any medical-related information they receive or discover about a job applicant or employee. This includes any information pertaining to any substance use disorder.
The Workforce Investment Act of 1998
Primarily intended as a vehicle to invest in workforce education and pathways programs, the WIA has a large body of administrators and board members that help to oversee certain workforce protocols. Part of the responsibilities of the WIA is to ensure that employers do not discriminate against their employees. This oversight provides an additional layer of protection for people in recovery that may be treated differently as a result of their substance abuse disorder.
The Fair Housing Act Offers Additional Protections
Many addicts experience the complete crumbling of their lives as they spiral farther down the addiction hole. While some might be able to hang onto their jobs because of protections when they enter treatment, homelessness is always a risk for addicts and alcoholics. Fortunately, the Fair Housing Act may prevent the eviction of some people who are disabled – including (under some circumstances) those who suffer from addiction or alcoholism.
People in recovery who are facing an eviction or discrimination related to their substance abuse issues may find solace by invoking the FHA. For instance, consider this passage from a fact sheet distributed by the U.S. Department of Justice Civil Rights Division and the U.S. Department of Housing and Urban Development:
A housing provider requires all persons applying to rent an apartment to complete an application that includes information on the applicant’s current place of residence. On her application to rent an apartment, a woman notes that she currently resides in Cambridge House. The manager of the apartment complex knows that Cambridge House is a group home for women receiving treatment for alcoholism. Based solely on that information and his personal belief that alcoholics are likely to cause disturbances and damage property, the manager rejects the applicant. The rejection is unlawful because it is based on a generalized stereotype related to a disability rather than an individualized assessment of any threat to other persons or the property of others based on reliable, objective evidence about the applicant’s recent past conduct. The housing provider may not treat this applicant differently than other applicants based on his subjective perceptions of the potential problems posed by her alcoholism by requiring additional documents, imposing different lease terms, or requiring a higher security deposit.
HIPAA, Medical Inquiries & Privacy Protections
Other protections for people in recovery include privacy rules regulated by all of the above Federal Acts, as well as those governed by the Health Insurance and Portability Act of 1996 (HIPAA). Generally, employers cannot use medical information that they learn about an individual in the course of employment in a discriminatory manner. No one can be treated less favorably, if they are qualified to do the job, in the terms and conditions of employment. Employers also must always keep confidential about anything they learn about employee and applicant health conditions. This includes addiction and treatment for substance use disorders.
When it comes to drug testing, however, employers can test for drugs and refuse to hire an applicant and may fire or discipline any current employee who fails a drug screen. This is another reason why people who are struggling with drug addiction or alcoholism should get help as soon as possible.
Family and Medical Leave Act of 1993
The Family and Medical Leave Act may protect you in the event that you need to leave work to attend treatment, even if it’s for an extended period of time. The U.S. Department of Labor has responded to requests for clarification of these and related rules, and the DOL responded in part with the following:
Treatment for substance abuse may be a serious health condition for purposes of FMLA if the applicable conditions defining a serious health condition set forth in Regulations, 29 CFR Part 825.114 are met. FMLA leave, however, may only be taken for treatment for substance abuse that is provided by a health care provider or by a provider of health care services on referral by a health care provider. (See section 825.118.) On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. (See section 825.114(d).)
There’s a lot more about protections under FMLA in the form of a comprehensive response by DOL Deputy Assistant Administrator Daniel Sweeney here: http://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-69.htm
Overall, if you act responsibly and preemptively you should be able to keep your job even if you have to go away for treatment for 30, 60, 90 days or longer. If you or someone you love needs to get help but you’re fearful of the possible ramifications, call us at 1-800-706-9190 and we’ll help you sort out what protections may be available to you.