Best Ohio Disability Discrimination Attorney Answer: Is alcoholism or drug abuse a disability under the American Disabilities Act? What should I do if I was wrongfully fired for being a recovering alcoholic? Can my boss fire me if he thinks that I am a drug addict?
The answers to these questions are not a direct yes or no. I know, I know, here we go again … employment discrimination lawyers refusing to give a straight answer. But, maybe we can make it simple. Employees are not protected under the Americans with Disabilities Act (“ADA”) from current use of drugs and alcohol even if they are addicts or alcoholics. On the other hand, employees who are recovering from substance abuse or participating in a drug abuse recovery program, or wrongfully perceived as engaging in alcohol or drug abuse are protected by the ADA. The protection of the employee is always present so long as they no longer engage in illegal drug abuse or alcoholism.
Although discrimination based on perceived alcoholism or illegal drug abuse is unlawful, employers have the right to prohibit substance abuse during employment. Employers can institute a zero tolerance policy for alcohol and drug use in the workplace and fire an employee violating the policy regardless of their dependency issues. The law protects an employee who is in recovery, but does not protect engaging in illegal drug use or abusing alcohol in violation of workplace policies.
Employers may also hold employees who are recovering from a drug or alcohol dependency to the same standards of performance as employees who are not recovering from substance abuse issues. For example, The Ohio Widget Company requires all employees to arrive at 9 a.m. to begin their shifts for the day. The policy is written down and distributed to all Ohio Widget Company employees upon hire. Nonetheless, Ohio Widget Company employees show up to their shifts ten minute late, but are not disciplined. Employee Bob is a recovering alcoholic and arrives late along with his co-workers, who are not similarly disabled. There is no indication Employee Bob is using alcohol again when he arrives late. His tardiness is not any different from his Ohio Widget Company colleagues. Yet, Ohio Widget Company makes the assumption Employee Bob is probably using alcohol again and terminates his employment. Ohio Widget Company’s treatment of Employee Bob is discriminatory and in violation of the ADA because he was treated differently than his co-workers because of his suspected relapse and their failure to treat co-workers engaged in the same tardy conduct. However, had Ohio Widget Company fired or reprimanded all employees, including Employee Bob for being tardy to work, there would be no ADA violation.
Employees who are currently engaging in the illegal use of drugs or alcoholics that are currently drinking alcohol will not be considered disabled for the purposes of the ADA and Ohio disability discrimination laws. To that end, employers can test employees for illegal drug use and alcohol use, and fire any employees who fail those tests. But, employers are not permitted to discriminate against employees who are not currently using drugs or alcohol simply because those employees have a history drug addiction or alcoholism.
Here, Congress did not define “current” or “currently” under either the ADA or the Rehabilitation Act. Shafer argues for a narrow definition, contending essentially that the statutory language means “at the precise time” or “at the exact moment.” (Appellant’s Br. at 23 “Shafer was not illegally using drugs at the time she was terminated ….” (emphasis added).) We agree that in some instances the word “currently” modifies actions an individual is engaged in at the present moment. See Webster’s II New Riverside University Dictionary 337 (1988) (defining “current” as “belonging to the present time” or “now in progress”); Webster’s Third New International Dictionary 557 (1986) (defining “current” as “in operation at the time actually elapsing,” and “currently” as “at present”). Shafer contends that this narrow definition excludes from statutory protection only those persons engaging in the illegal use of drugs “at present” or during “the time actually passing.” We disagree. “The word `current’, when used as an adjective, has many meanings, and definition depends largely on [the] word which it modifies, or subject-matter with which it associated.” Black’s Law Dictionary 345 (1981). In the ADA and the Rehabilitation Act, “currently” modifies the phrase “engaging in the illegal use of drugs.” Contrary to Shafer’s assertion, the ordinary or natural meaning of the phrase “currently using drugs” does not require that a drug user have a heroin syringe in his arm or a marijuana bong to his mouth at the exact moment contemplated. Instead, in this context, the plain meaning of “currently” is broader. Here, “currently” means a periodic or ongoing activity in which a person engages (even if doing something else at the precise moment) that has not yet permanently ended. For example, “Dr. Hawking is currently engaged in scientific research,” and “Star Wars is currently playing at a local theater.” See Webster’s Third New International Dictionary 557 (1986) (providing examples of the broad definition of “currently”). Accordingly, under the plain meaning of the statutes, an employee illegally using drugs in a periodic fashion during the weeks and months prior to discharge is “currently engaging in the illegal use of drugs.”
Accepting Shafer’s definition of the statutory language would produce absurd results. If we were to accept Shafer’s contentions, an employee testing positive for drugs on Monday would not be “currently engaging in the illegal use of drugs” under the statutes despite the fact that his positive test resulted from weekend drug use — a result so “inconsistent with [public] policy and abhorrent to the sense of justice” that rejecting Shafer’s argument is warranted. Sorrells v. United States, 287 U.S. 435, 449, 53 S.Ct. 210, 215, 77 L.Ed. 413 (1932). Indeed, under such a constrained reading of the statutory language, an employee would be considered “currently engaging in the illegal use of drugs” only if his employer discovered him needle-in-arm or bong-to-mouth and terminated him on the basis of such “current” use. … This case confirms our conclusion that applying a narrow definition of the word “currently” would produce absurd results. Shafer admitted after being confronted by co-workers that she illegally used drugs during the weeks and months prior to her discharge and that she stole narcotics from the Hospital to support her addiction less than a month before she was fired. The Hospital placed her on a medical leave of absence, helped her report to a drug rehabilitation facility, carefully reviewed the situation, and discharged her. She then sued, alleging that she was terminated unlawfully because of her addiction to, rather than use of, drugs. In sum, she contends that the Hospital is prohibited from firing her because she entered drug rehabilitation after being caught and because she was not using drugs on the day she was fired — an absurd application of the statutory language “abhorrent to the sense of justice,” id., and shocking to “the general moral or common sense.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930).
So “currently” does not mean lighting up a joint at work, bet what does it mean? On this point, the EEOC Technical Assistance Manual on the ADA provides some clarity: “‘Current’ drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.” Now, just try not to focus on what “recently enough” means. In Zenor v. El Paso Healthcare Systems, Ltd., the Fifth Circuit Court of Appeals held that “the characterization of ‘currently engaging in the illegal use of drugs’ is properly applied to persons who have used illegal drugs in the weeks and months preceding a negative employment action.” In Zenor, the court held that the employee was a “current” user because he had used cocaine five weeks prior to his notification that he was going to be discharged. In Salley v. Circuit City Stores, Inc., the Third Circuit Court of Appeals noted that it knew of “no case in which a three-week period of abstinence has been considered long enough to take an employee out of the status of ‘current’ user.”
And, just when you think you are getting a grasp of this, the Second Circuit Court of Appeals threw in another twist in Teahan v. Metro-North Commuter R. Co., holding: “‘Current’ is to be determined in light of the section in which it appears; that is, whether the employee’s substance abuse problem is severe and recent enough so that the employer is justified in believing that the employee is unable to perform the essential duties of his job.” Okay, so now current is not just a question of time but also of severity and job function.
So, a singular casual use by and addict or an alcoholic may possibly be more recent and still not be “current” but a week long binge may have occurred months ago and be found to be current.
It is important to note the distinction between actual drug addiction and alcoholism, and casual use. On this point, the EEOC Technical Assistance Manual on the ADA provides that “a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use.” But, casual drug and alcohol users may receive protection under the ADA if their employer perceives them to be addicts or alcoholics. On this point, the EEOC Technical Assistance Manual on the ADA provides that: Individuals who are not illegally using drugs, but who are erroneously perceived as being addicts and as currently using drugs illegally, are protected by the ADA. Individuals who are not illegally using drugs, but who are erroneously perceived as being addicts and as currently using drugs illegally, are protected by the ADA.”
Okay, got it? Well, maybe this is not a simple answer at all. But, because these issues of disability discrimination are addressed on a case by case basis, the simple and right thing to do is call The Spitz Law Firm to talk about your situation.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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