Ten Years After the ADA Amendment Act (2008): The Relationship Between ADA Employment Discrimination and Substance Use Disorders

To present a prima facie case of discrimination under the ADA, plaintiffs must demonstrate that they have a physical or mental impairment that substantially limits one or more major life activities and that they are otherwise qualified for the job, with reasonable accommodations whenever appropriate. In other words, can one simultaneously be qualified for a job and be disabled?

As with other disorders, the courts have assumed that substance use disorders (including alcohol use disorder) are not disabilities per se but may merit protection under the ADA if plaintiffs can demonstrate that the disorder limits one or more major life activities (8–10). The ADA, however, specifies that employees with substance use disorders may be held to the same job performance and behavior as other employees, even if their unsatisfactory performance or behavior is related to alcohol or drug use (42 U.S. Code § 12114 [c]). As such, these provisions create a Catch-22 situation: plaintiffs must demonstrate that because of a substance use disorder, they are limited in their ability to perform major life activities, many of which will be required in the workplace (e.g., interacting with other people), yet by doing so, in essence they are demonstrating their lack of qualifications for the job, thereby invalidating their claim. This contrasts with how the ADA deals with other disabilities: there is no provision in the law that allows employers to hold employees with other impairments to the same job performance and behavior standards as fellow employees if their unsatisfactory performance is related to their disability and, as such, are required to accommodate the needs of these employees incurred by their disability.

One example of the effect of this provision is Evans v. Federal Express Corporation (11). In this case, a plaintiff’s evidence that substance use disorder impaired his functional abilities led the court to find him unqualified for the job. Mr. Evans was allowed to take a medical leave to receive treatment for his cocaine use. During treatment, he realized that he also had alcohol use disorder, although he continued to drink after he returned to work. His request for another medical leave to receive treatment for alcohol use disorder was denied. He was fired after his employer determined that he was unqualified for the job because of his repeated, unexcused absences related to alcohol. Mr. Evans contended that he was fired because of his alcohol use disorder and sued his former employer for wrongful termination in violation of the ADA. The district court issued summary judgment in favor of the employer. On appeal, Mr. Evans argued that alcohol use disorder impaired his ability to work, as evidenced by his absences. He contended that had he been afforded the opportunity to take a medical leave as a reasonable accommodation, he would have become qualified for the job. The court determined that the former employer was not mandated to allow an additional medical leave, noting “It is one thing to say that further treatment made medical sense, and quite another to say that the law required the company to retain Mr. Evans through a succession of efforts.”

This was consistent with the district court’s comment that the defendant was not required to give Mr. Evans “yet another opportunity to seek treatment after indulging Mr. Evans’ errant work habits well beyond anything the law could reasonably expect.” The appellate court, affirming the ruling of the lower court, determined that the defendant’s termination was motivated by his repeated absences, in violation of the company’s attendance policy, and hence he was not qualified for the position.

A second case, Sullivan v. The Neiman Marcus Group (12), illustrates the opposite situation. Mr. Sullivan was fired after his employer claimed he was drinking alcohol on the job. He sued for wrongful termination in violation of the ADA, alleging that his employer failed to reasonably accommodate his disability and illegally discriminated against him. He claimed work as the major life activity that was impaired, albeit without presenting examples of how alcohol use disorder affected his work performance. In fact, to demonstrate that he was qualified for the job, he argued that his performance had been satisfactory and that it had also been satisfactory in previous jobs. The district court issued summary judgment in favor of the employer. On appeal, the U.S. Court of Appeals for the First Circuit noted that proving that Mr. Sullivan’s substance use disorder limited his ability to work would have required demonstrating that he had long-term or permanent restrictions on his abilities to perform a broad range of jobs utilizing his professional skills. Apparently persuaded by Mr. Sullivan’s contentions that his work performance had been satisfactory, the court concluded that there was no evidence to support his claim that alcohol use disorder interfered with his ability to work and, as such, that he did not qualify for ADA protections.

For some occupations, the interaction of the ADA with other federal laws all but rules out the possibility that someone with substance use disorders could be otherwise qualified for a job. In Jarvela v. Crete Carrier (13), a driver of commercial motor vehicles received alcohol treatment after being given a diagnosis of alcohol dependence (DSM-IV TR; corresponding to DSM-5 alcohol use disorder) (36–38). Following treatment, he was cleared to return to work by his treating physician as well as by a physician designated by the employer to perform a fitness-for-duty evaluation. However, Mr. Jarvela was fired on the basis of his diagnosis, notwithstanding his current remission, and he sued for wrongful termination in violation of the ADA. The ADA, however, includes a provision whereby employees in an industry subject to the regulations of the Department of Transportation (DOT) may be required to comply with the standards established by that agency. Under DOT regulations, physical qualification standards include that the person has “no current clinical diagnosis of alcoholism” (39). The district court issued summary judgment in favor of the employer. On appeal, the circuit court established that “alcohol dependence” and “alcoholism” are materially equivalent. The physicians who evaluated him as safe to return to the job testified that alcohol dependence is a chronic medical condition and that an “alcoholic is an alcoholic for life.” As such, the court concluded that Mr. Jarvela had a “current clinical diagnosis of alcoholism” and rejected his contention that being in remission meant that his diagnosis was not current. Based on these findings, the court determined that Mr. Jarvela did not meet the physical qualification standards, and because alcohol use disorder precluded him from driving, an essential function of his job, he was not qualified for the position and thus not eligible for ADA protection.

Although the ADA excludes from protection individuals who are currently engaging in the illegal use of drugs (42 U.S. Code § 12114 [a]), “safe harbor” provisions exempt those who have been successfully rehabilitated and those participating in supervised rehabilitation programs, assuming they are no longer engaging in such use (42 U.S. Code § 12114 [b]). However, the meaning of “current” has been interpreted differently, with various courts taking into account the duration of abstinence, the potential impact of substance use on work performance, and the nature of the job. Neither the ADA’s legislative history (40) nor the EEOC’s interpretive guidance (41) is helpful in determining how “current” should be interpreted, given that both indicate that a bright-line standard would be inappropriate. The legislative record describes congressional intent for the “current” qualifier: “The provision excluding an individual who engages in the illegal use of drugs from protection . . . is not intended to be limited to persons who use drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather the provision is intended to apply to a person whose illegal use of drugs occurred recently enough to justify a reasonable belief that a person's drug use is current” (40). The EEOC’s guidance notes that the current qualifier “is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.”

Clearly the legislative history and guidance contain indications that duration of abstinence should be the basis on which current use is determined. Nonetheless, the case law demonstrates that the courts have focused instead on a subjective appraisal of the effects of substance use, the specific nature of the job in question, or the impact of potential drug-related misconduct. For example, in Zenor v. El Paso Healthcare (14), a pharmacist was mandated by his employer to enter a drug treatment program after he exhibited job performance issues related to his cocaine use. While in treatment, Mr. Zenor’s employment was terminated, and he sued for wrongful termination under the ADA. The district court issued a judgment as a matter of law in favor of the defendant, finding that as a current drug user, Mr. Zenor did not qualify for ADA protections. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that the severity of the substance use disorder, the relapse rates for the specific substance used, and the level of responsibility required by the job must be taken into consideration to assess whether a plaintiff’s drug use is current. As such, the term “means that the drug use was sufficiently recent to justify the employer's reasonable belief that the drug abuse remained an ongoing problem.” In this case, the defendant had presented “substantial testimony about the extremely high relapse rate of cocaine addiction.” The court affirmed summary judgment in favor of the employer.

The decision in Mauerhan v. Wagner Corporation (15) underscores that participation in a drug treatment program does not automatically render an individual qualified under the ADA’s safe harbor provisions. Mr. Mauerhan was asked to submit to a random drug test and was terminated after informing his employer that he had used cocaine and marijuana. He completed a 30-day treatment program, after which he unsuccessfully reapplied for his job and brought suit under the ADA. The district court ruled that the plaintiff was a current drug user because one month of abstinence from drugs was insufficient to qualify for the ADA and issued summary judgment for the employer. On appeal, the U.S. Court of Appeals for the 10th Circuit commented that mere participation in a drug treatment program “will bring an individual closer to qualifying for the safe harbor” but is not a per se guarantee of protection. Rather, the individual must have abstained from using drugs for a “sufficient period of time that the drug use is no longer an ongoing problem.” The court affirmed summary judgment in favor of the employer on the basis that Mauerhan failed to present sufficient evidence demonstrating that he was stable in his recovery.

The ADA’s protection of persons with qualifying disabilities from discrimination raises the question of whether it protects them from the consequences of misconduct in which they engage as a consequence of their disabilities. In the case of substance use disorders, this can be a contentious issue.

In Despears v. Milwaukee County (16), an appellate court recognized substance use disorders as a disease to which persons can be genetically or otherwise predisposed. However, it ruled that the consumption of substances is not wholly involuntary. Mr. Despears was demoted to a job that did not require driving after his driver’s license was revoked following his fourth conviction for driving under the influence (DUI) of alcohol. He sued, arguing that alcohol use disorder caused him to drive under the influence, which in turn caused him to lose his license, leading to his demotion and, therefore, that alcohol use disorder was the cause of his demotion, violating the ADA. On appeal from a summary judgment in favor of the employer by the district court, the U.S. Court of Appeals for the Seventh Circuit acknowledged that persons with alcohol use disorder are more likely to lose their licenses because of driving drunk. As such, it agreed that there was a causal relationship between Mr. Despears’ alcohol use disorder and his DUI convictions and, consequently, with his demotion. The court opined, however, that “a cause is not a compulsion (or sole cause); and we think the latter is necessary to form the bridge that Despears seeks to construct between his alcoholism and his demotion.” Indeed, the court suggested that Mr. Despears’ decision to drive under the influence of alcohol was another cause of his demotion and that he could have avoided the demotion by not driving drunk. In this case, the court argued that “the disability contributed to but did not compel the action that resulted in the demotion. To impose liability under the Americans with Disabilities Act or the Rehabilitation Act in such circumstances would indirectly but unmistakably undermine the laws that regulate dangerous behavior.” Reasonable accommodations mandated by the ADA ought not to require overlooking infractions of the law.

Nielsen v. Moroni Feed Company (9) demonstrates that misconduct related to substance use disorder can be held to a different standard than misconduct resulting from other disabilities. Mr. Nielsen, then the president of the company, was referred for evaluation at a drug treatment center because the company’s board of directors believed that he had abused prescription pain medication. They acted after repeated incidents in which he was found, uninvited, in the private homes of company employees. He was evaluated at the center, found not to have a substance use disorder, and discharged. When he returned to work, his employment was terminated because he “had lost the trust of the Board.” He sued for wrongful termination in violation of the ADA, claiming that he was perceived as having substance use disorder and that the board believed he was stealing medications from the residences of employees. The district court issued summary judgment in favor of the employer. On appeal, the U.S. Court of Appeals for the 10th Circuit noted that the ADA allows individuals with substance use disorders to be held to the same standards of performance and behavior as others. As a result, substance-related misconduct is not afforded ADA protections, even among persons found disabled by their disorders under the Act. The court of appeals affirmed the ruling of the lower court that Mr. Nielsen was terminated because of his home-entering activity and not because of a disability, real or perceived.