By DeAnna M. Crosby
To avoid employer discrimination against individuals with drug and alcohol histories, one must first understand one’s own perceptions about this subject. It’s understandable that as a business owner, you want to hire the best qualified job candidate, but given the widespread stigma that follows people who have substance abuse histories, how will you know if this employee will exhibit questionable behaviors down the road? Navigating the murky waters of employment is tricky business, as individuals with substance abuse histories are protected under the American Disabilities Act (ADA), and there are certain questions that are not permitted during an interview. Even after you hire the candidate, you will want to cultivate a supportive work environment that reasonably accommodates employees seeking rehabilitation or other supportive services.
4 ways to avoid employer discrimination against drug and alcohol histories:
1. Before You Hire the Candidate, Ask the Right Questions
If you are a small business owner with less than 15 employees, you have a little more leeway to ask questions regarding your candidate’s past, but it would be best to err on the side of caution. Under the ADA, employers with 15 or more employees are not allowed to ask job applicants about their past drug and alcohol addiction, because “addiction” denotes a disability, whereas usage does not. Therefore, you can ask candidates if they have ever “used” illegal drugs, but you cannot ask if they have had an addiction. With regard to alcohol consumption, you can ask if they have any DUIs but you cannot ask how much they drink.
2. After You Hire the Candidate, Clearly Communicate Your Drug and Alcohol Policy
Communicate your company’s alcohol and drug policy verbally, in person and in writing. Distribute the employee handbook during the new employee orientation and carefully review the guidelines with them. Provide a Q&A session at the end to ensure full understanding. The policy should show support and create a safe space for employees to come forward if they are struggling with any addiction problem. You may find some business tips helpful in creating a drug and alcohol policy if you don’t have one in place. The essential components of a drug and alcohol policy would include the company’s purpose, provisions for employee assistance, company policies and procedures, drug testing protocols, consequences for testing positive and a page for the employee’s signature, certifying that the employee has fully read and understands the employer’s expectations for a substance-free workplace.
3. Identify Potential Pitfalls
Can you fire an employee for failing a drug test, if the employee is using medical marijuana? In Massachusetts, a woman sued her employer for disability discrimination in the case of Barbuto vs. Advantage Sales & Marketing. She was terminated from employment for testing positive for marijuana use, but she was a patient who qualified for the medical use of marijuana. Research the laws in your state regarding marijuana and make provisions in your drug and alcohol policy accordingly.
An employer was found guilty of interfering with an employee’s Family and Medical Leave Act (FMLA) rights in the ruling of LaMonaca v. Tread Corp, when the employee expressed some psychological distress involving both personal and professional complications. She mentioned the idea of quitting and later found out that she was fired after she requested a leave of absence under the FMLA. If you receive notice from an employee requesting time off under FMLA regulations, you have the right to request medical certification for verification. To know about your rights are as an employer, familiarize yourself with the regulations in the Employer’s Guide to the Family and Medical Leave Act.
4. Provide Resources for Employees Struggling with Substance Abuse
A study published in Drug and Alcohol Dependence reveals that persons with a substance abuse history reported significantly higher rates of involuntary job loss than average, implying that employer discrimination could be one of the contributing factors to poor job stability. One way to prevent employer discrimination is to provide employees with the resources that will help them keep their job. You can distribute pamphlets to employees about their rights under FMLA and their rights to privacy and confidentiality under 42 CFR Part 2. List resources where employees can find help for addiction treatment, support groups or other community groups that employees might find useful. Providing reasonable accommodations does not mean giving privileges to individuals with disabilities; it means being flexible enough within reason so that your employee can perform the essential functions of the job and enjoy the same benefits that are available to others.
DeAnna M. Crosby, clinical director of New Method Wellness, has over 20 years of experience working with clients in recovery. She has been featured on Dr. Phil, National Geographic’s Taboo, Elle Magazine and The Huffington Post.