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When Are Alcoholism, Drug Addiction Considered Disabilities?

Sep 01, 2023

Questions of Accommodation


By Trevor Brice, Esq.

As we move out of the COVID-19 era, employees are struggling more frequently with drug and alcohol addiction. As such, it is important for employers to know that alcoholism and drug addiction can qualify as disabilities under federal and Massachusetts anti-discrimination laws.


If an employee suffers from alcoholism or drug addiction, the employer could be exposed to liability for discriminating against that employee or failing to grant the employee a reasonable accommodation for the employee’s alcoholism or drug addiction. However, alcoholism and drug addiction do not qualify as disabilities in all circumstances.

 

Alcoholism and Drug Addiction as Disabilities

Despite the possibility that alcoholism or drug addiction can qualify as legal disabilities, employers do not have to tolerate employees who are drunk or under the influence on the job. As such, employees cannot excuse being under the influence at work by claiming that they suffer from alcoholism or drug addiction.


Furthermore, employees cannot request to be drunk or under the influence at work as a reasonable accommodation for alcoholism or drug addiction. In these circumstances, the employee would not be a ‘qualified’ alcoholic or drug addict that would meet the definition of disability under the ADA. Consequently, the ADA does not cover those who are currently engaging in use of illegal drugs or alcohol.


In addition, an employee who is an alcoholic or drug addict can lose their qualification as a disabled individual due to low performance, as the ADA specifically provides that an employer can hold a drug-addicted or alcoholic employee to the same standards and behaviors as other employees.


However, a high-performing alcoholic or drug-addicted employee can be qualified under the ADA if the employee is no longer engaging in illegal drug use or alcohol.

 

Reasonable Accommodations Under the ADA

Reasonable accommodations for employees who are recovering alcoholics or drug addicts can include seeking time off for inpatient treatment; time off to undergo outpatient treatment, including methadone clinics; or being excused from work events that involve alcohol. However, qualified alcoholics and drug addicts do not necessarily need to be granted accommodation every time they ask.


For example, if a drug-addicted employee requests a reasonable accommodation in response to discipline for unacceptable performance or conduct, the employer does not have to grant that accommodation if the low performance is attributable to the current use of drugs.


However, if the low performance is due to alcohol, and the employee specifically notes this in her accommodation request, it is the employer’s responsibility to engage in an interactive dialogue to determine whether or not the requested accommodation is reasonable. Absent undue hardship, the employee may have to grant the employee’s reasonable-accommodation request, such as a modified work schedule to enter treatment or to attend an ongoing self-help program.


However, another wrinkle presents itself when the reasonable accommodation is in response to a court order for an alcohol- or drug-related offense. As a recent court case (Mueck v. La Grange Acquisitions, L.P.) notes, employers do not have to grant a requested accommodation of leave in relation to a court-order DUI for a recovering alcoholic.


Further, the employer can offer the employee a “firm choice” or “last-chance agreement,” in which the employee can be terminated for future poor performance or misconduct resulting from drug or alcohol addiction. The agreement will normally state that the employee’s continued employment is conditioned on the employee’s agreement to receive substance-abuse treatment and refrain from further use of alcohol or drugs.

 

Conclusion

When an employer is determining whether an accommodation for disabled employees is reasonable, it is a difficult task in and of itself. When the question becomes whether the employee is actually disabled due to current or past alcohol or illegal drug use, the question for the employer becomes even harder. If an employee is seeking a questionable accommodation request for alcoholism or drug addiction, it is prudent to seek out representation from employment counsel.


This article was published in the September 1, 2023 edition of BusinessWest. Click here to visit their website!

Non-Compete Agreements Are in Jeopardy

26 Apr, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a final rule banning non-competition agreements for all employees except for very narrow exceptions. The FTC’s Final Rule banning all non-competition agreements is effective 120 days after its publication in the Federal Register, which is expected in the next few days.  As of the effective date, all non-competition agreements are banned, except for franchisor/franchisee relationships and for sales of a business between buyer and seller. The FTC’s Rule is retroactive, prohibiting certain non-competition agreements before the effective date of the Rule as well. Existing non-competition agreements can remain in effect as to senior executives, which are defined in the Rule as employees in “policy-making positions” making at least $151,164 annually. The FTC’s Final Rule is already being challenged through the court system and a challenge from the Chamber of Commerce will most likely follow suit. Therefore, if an employer has existing non-competition agreements, the employer may not need to rescind them just yet. Stay tuned for updates as these challenges take their due course.

ALERT: US Department of Labor Increases Salary Threshold for White Collar Overtime and Minimum Wage Exemptions

26 Apr, 2024
By: Trevor Brice, Esq. On April 23, 2024, the U.S. Department of Labor (“DOL”) announced a Final Rule updating regulations governing Executive, Administrative and Professional exemptions (“EAP exemptions”) from the minimum wage and overtime rules. This Final Rule significantly increases the salary threshold for workers to qualify for EAP exemptions. In general, to qualify for EAP exemptions, an employee must 1) be paid on a salary basis, 2) at a threshold level, and 3) primarily perform EAP duties as defined by the DOL. The Final Rule does not impose any changes on the salary basis or job duties relevant in determining EAP exemptions. After issuance of a proposed rule that received approximately 33,000 comments, the DOL in the Final Rule is increasing the salary thresholds in waves. As of July 1, 2024, the salary threshold for EAP exemptions applies to employees making $844 per week ($43,888 annually) on a salary basis. As of January 1, 2025, the threshold increases to $1,128 per week ($58,656 annually). This means that employees making under these amounts on a salary basis as of these dates are no longer exempt from overtime, as long as the other criteria for determining EAP exemptions by the DOL are met. Additionally, the rule increases the salary threshold for the “highly compensated” employee exemption. This exemption applies when an employee meets the greater salary threshold, their primary duty includes performing office or non-manual work and the employee customarily and regularly performs at least one of the duties or responsibilities defined in the EAP exemptions. The DOL also issued the increased salary threshold for the highly compensated exemption in waves. As of July 1, 2024, the salary threshold for the highly compensated employee exemption applies to employees making $132,964 annually, including at least $844 per week paid on a salary or fee basis. As of January 1, 2025, the salary threshold for the highly compensated employee exemption raises to $151, 164 annually, including at least $1,128 per week on a salary or fee basis. The DOL estimates that under the Final Rule, there will be four million workers newly entitled to overtime protection as of 2025. As with the FTC’s Final Rule passed on the same day, the DOL’s Final Rule will most likely be subject to challenge through the court system. However, for employers concerned with this new rule, it would be prudent to identify those positions below or close to the new salary thresholds, consider whether to change salaries given the new thresholds and conduct training as to who will now be exempt under the DOL’s final rule. If there is any gray area as to the DOL’s final rule, reach out to the local employment and labor counsel to determine if there is potential liability. Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
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