Will I lose my job if my employer finds out about my current or past substance use or mental health disorder?
How will I get the time off of work to go to treatment?
Am I protected if my company discriminates against me for being in treatment or recovery?
These are probably the most common questions we get asked when someone calls for treatment for themselves or a loved one. These concerns can create unmanageable and unnecessary fear if one is not aware of how you or your loved one is protected by state and federal laws. First and foremost, if you are coping with a substance use disorder and are employed, you are not alone.
The National Council on Alcoholism and Drug Dependence reports that:
- 70% of the estimated 14.8 million Americans who use illegal drugs are employed.
- Workers who report having three or more jobs in the previous five years are about twice as likely to be current or past year users of illegal drugs as those who have had two or fewer jobs.
- Large federal surveys show that 24% of workers report drinking during the workday at least once in the past year.
- A hospital emergency department study showed that 35 percent of patients with an occupational injury were at-risk drinkers.
Fear of what might happen at work can often push people into the shadows and prevent workers from seeking help. The reality is that not seeking treatment for a drug or alcohol addiction is more detrimental to one’s health and can lead to more damaging effects in the workplace. Fear of discrimination should never be a deterrent for seeking treatment when considering the levity of the situation, which is often life or death. Understanding that mental health and substance use disorders as debilitating to daily functioning, protections and federal laws are in place to ensure you or your loved one are extended the same liberties as someone suffering from a heart disorder or cancer.
The Four Protections in Place
From the Substance Abuse and Mental Health Services Administration’s Know Your Rights:
Federal civil rights laws prohibit discrimination in many areas of life against qualified “individuals with disabilities.” Many people with past and current alcohol problems and past drug use disorders, including those in treatment for these illnesses, are protected from discrimination by:
- The Americans with Disabilities Act (ADA);
- The Rehabilitation Act of 1973;
- The Fair Housing Act (FHA); and
- The Workforce Investment Act (WIA).
Non-discrimination laws protect individuals with a “disability.” Under these Federal laws, an individual with a “disability” is someone who –
- has a current “physical or mental impairment” that “substantially limits” one or more of that person’s “major life activities,” such as caring for one’s self, working, etc.;
- has a record of such a substantially limiting impairment; or is regarded as having such an impairment.
Whether a particular person has a “disability” is decided on an individualized, case-by-case basis. Substance use disorders (addiction) are recognized as impairments that can and do, for many individuals, substantially limit the individual’s major life activities. For this reason, many courts have found that individuals experiencing or who are in recovery from these conditions are individuals with a “disability” protected by Federal law. To be protected as an individual with a “disability” under Federal non-discrimination laws, a person must show that his or her addiction substantially limits (or limited, in the past) major life activities (SAMHSA)
Leaving work to Get Treatment
California law provides stronger protections to employees who suffer from alcoholism and drug addiction than the federal law does. One legal site reports, “Alcoholism and drug addiction are medically recognized diseases that affect millions of Americans, and under both California and federal law, they are considered disabilities. Employers are required to provide reasonable accommodations to permit affected employees to seek treatment and are prohibited from discriminating against employees because of alcoholism or drug addiction.
While employers are free to terminate and can refuse to hire anyone whose alcohol or drug use impairs their ability to perform the duties of their job, employers cannot fire or take other negative employment actions against an employee because of their status as an alcoholic or drug addict. California and federal laws recognize alcoholism, and to a lesser extent, drug addiction, as a disability and many employers are required to to provide reasonable accommodations – usually time off to seek treatment – to employees who seek help”.
The following California Labor Codes can be used as a reference:
- California employers who employ more than 25 people are required to provide reasonable accommodations to employees who wish to participate in an alcohol or drug rehabilitation program. Typically, this means that the employer must allow the employee to take leave or time off to participate in the program. The accommodation must be provided unless it would cause an undue hardship for the employer. Cal. Labor Code § 1025.
- Employers must also make reasonable efforts to preserve the employee’s privacy concerning his or her participation in an alcohol or drug rehabilitation program. Cal. Labor Code § 1026.
- While employers are not required to provide paid time off for employees to seek treatment, employees may use any paid sick leave time they have accumulated to attend a rehab program. Cal. Labor Code § 1027.
Employee Assistance Programs (EAPs)
Employee Assistance Programs or EAPs are “workplace-based programs designed to address substance use and other problems that negatively affect employees’ well-being or job performance” (Merrick et al., 2007). The vast majority of workplaces with 100 or more employees and almost all of Fortune 500 firms (90%) have an Employee Assistance Program. A journal published by Dr. Elizabeth S. Levy Merrick reported that, “Most contemporary EAPs are ‘broad-brush’ programs that address a wide spectrum of substance use, mental health, work-life balance, and other issues. In some cases, short-term counseling is sufficient to address a client’s needs. In others, the client is assessed, referred to behavioral health treatment outside the EAP, and provided follow-up support as needed”.
The director of your EAP may recommend a treatment program where they have a relationship or one they’ve heard about, but remember that you have the option to go anywhere you choose. Depending on your insurance coverage, treatment through Roots through Recovery may be covered in full or at least in part once your deductible and out-of-pocket are met. If your employer does not have an EAP, speak to your company’s human resources representative, and remember that you are protected from discrimination.
What if I’ve been discriminated against?
Attorney Brook Pollard of the firm TLD Law in Long Beach, CA offers the following:
“Discrimination or harassment against a disabled person, failure to accommodate a disability and/or retaliation against someone for requesting an accommodation, are against the law. If you believe you are a victim of unlawful action (or inaction), you can file a complaint with the California Department of Fair Employment & Housing or the Federal Equal Employment Opportunity Commission. You should also promptly consult private legal counsel to discuss your rights and obligations (such as ensuring that applicable Statutes of Limitation are met). Make sure you have journaled dates, times and the content of all conversations and events so that when you present your claim, you have all material information at your fingertips.
TLD Law has employment attorneys that can assist both companies and individuals to navigate these important matters. Check out their website to find an attorney to assist you: www.tldlaw.com“