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- Is drug abuse an ADA disability?
David B. Ritter
Neal, Gerber & Eisenberg LLP
Chicago
http://ngelaw.com
dritter@ngelaw.com
(312) 269-8444
David B. Ritter chairs Neal Gerber Eisenberg’s
Labor & Employment Practice Group, where he represents management
in all areas of labor and employment law. He has extensive nationwide
experience in federal and state court litigation in the areas of
employment discrimination, including harassment claims, noncompete,
trade secret and restrictive covenants, employment torts and all other
litigation related to the employment relationship. David routinely
handles matters before governmental agencies, including the Equal
Employment Opportunity Commission, state equal employment commissions,
the Department of Labor and the OFCCP. David has also defended
employers faced with claims under Sarbanes-Oxley. He handles National
Labor Relations Board proceedings and arbitration, as well as
affirmative action plans, employment issues related to corporate
transactions and counseling of employers on employment issues. He
represents mainly high-level executives on issues related to employment
and separation agreements. David has a special knowledge in training
employees in the entire range of employment law issues.
Q. I suspect that an employee is using illegal drugs. Does drug use qualify as a “disability” under the ADA? Do I have to provide the employee with a reasonable accommodation? Or can I terminate his employment?
A. Casual drug use is not a disability under the ADA. Only individuals who are addicted to drugs, have a history of addiction or who are regarded as being addicted have an impairment under the law.
The ADA also does not protect current drug use. “Current” means that the illegal use of drugs occurred recently enough to justify the employer’s reasonable belief that involvement with drugs is an ongoing problem.
Therefore, if your employee is either a current or casual drug user, then he does not have a disability under the ADA. Thus you can terminate him, without offering reasonable accommodations.
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