As the number of those living with addiction grows, so does the need for employers capable of addressing the issue in ways that are helpful not just to those employees with the disease, but also to the organization’s success.
More than 23 million Americans struggle with an addiction.1 Of this number, over 70 percent of them are able to maintain regular employment,2 raising some questions: What are the effects of employing an addicted person? What role should an employer play in seeing that they receive the help they need?
According to the National Council on Alcoholism and Drug Dependence Inc., drug misuse costs employers an estimated $81 billion each year.3 Included in the reasons for this are a higher rate of unexcused absences as well as a tendency to be late for work among those who misuse substances. They are also more likely to file a Workers Compensation claim than their colleagues.4
In an effort to help quantify these costs, the National Safety Council recently joined with the national nonprofit Shatterproof and the University of Chicago to create the Substance Use Cost Calculator for Employers.5 Plug in the size of the organization, the industry and the state where it’s located, and out comes the estimated costs. All of this is to demonstrate that when it comes to substance misuse, “employers have some real skin in the game.”6
Which brings us to the next question: What is an employer to do?
Firing the person may seem like the most straightforward option, and in some cases that may be the case. But before you pull the trigger, consider the following factors.
First are the legal ramifications. Under the Americans with Disabilities Act (ADA), alcoholism and drug addiction both qualify as a disability. In the case of the former, the Equal Employment Opportunity Commission states: “An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not ‘qualified.'”7
These protections are distinct from those written for those engaging in illegal drug use. Here, the rule reads: “Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.” The “but” here is should a drug test reveal current consumption of illegal drugs, he or she is barred from ADA protections.8
Put simply, you cannot simply fire someone for being an alcoholic. Nor is it legal to discriminate in hiring simply because someone is in recovery, whether it’s related to drugs or alcohol.
Of course, what’s legal and what’s practiced aren’t always the same thing.
Todd R. Wulffson is an Orange-county based attorney practicing in the area of employment law. Often, he said, employers will screen an applicant’s social media and stumble on discussions of his or her sobriety there. While difficult to prove such posts were the reason a candidate was denied a job, lawsuits over the issue are not unheard of. “It is my practice to advise employers to disclose the nature and extent of background checks–including social media–up front to applicants, but then not to perform any of them until after an offer of employment is made,” Wulffson told The Canyon in this exclusive interview.
Another common situation is that of an employee seeking leave for rehab, in which case the answer to whether or not an employer must allow time off and hold the person’s job is somewhat situational.
“The employer must provide a reasonable accommodation, i.e. a leave, unless the leave creates ‘undue hardship,'” Wulffson said. Say that employee is some kind of director or general manager, granting him or her leave could represent “undue hardship” under the law. There is a catch, however, and that is “the employer would have to show that they could not hire a temporary person to cover the duties, or have another member of management do so.”
Going forward, Wulffson said he’d like to see the creation of a provision designed to better help employers work with those who are “truly committed to recovery.” As it stands, high recidivism rates mean employers who attempt to enter into a “last chance agreement” often find it being used against them. According to the agreement, the employee promises to seek treatment and not to relapse. In theory, it’s a simple arrangement. In practice, however, employees fired for failing to keep their side of the bargain have been known to sue “often for punitive damages” by arguing that the high relapse rate means the deal was unfair to begin with.
By adding a provision in which employees with addiction only have one chance to enter a last chance agreement, the ADA–as well as the Fair Employment and Housing Act in the case of California–could “dramatically help” not just employers, but employees, he said. “With such a provision, employers would be able to enter into such agreements, and it would help employees who truly desire to overcome their addiction.”
By Tamarra Kemsley