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Substance Abuse and Employment Discrimination Nelson Chan | Chief Counsel Department of Fair Employment and Housing

 According to the National Survey on Drug Use and Health, 8.9% of Americans 12 years or older were dependent on or abused alcohol or illegal drugs in  California’s rate of dependence or abuse was slightly higher at 9.5%. Substance Abuse and Mental Health Services Administration, State Estimates of Substance Use and Mental Disorders from the National Surveys on Drug Use and Health (2011) p Introduction 3

 Laws addressing substance abuse and employment: ◦ Fair Employment and Housing Act (FEHA)  Government Code section et seq. ◦ California Labor Code  Labor Code section 1205 et seq. ◦ Americans with Disabilities Act (ADA)  42 U.S.C. § et seq. 4

 A physiological disease, disorder, or condition that affects one or more body systems and limits major life activity. ◦ Major life activities include seeing, hearing, speaking, walking, learning, breathing, working, caring for oneself, etc. ◦ Limits means that the disability makes it difficult to achieve a major life activity. Government Code section

 FEHA intentionally applies a broader definition of disability than the ADA. ADA definitions establish the “floor” for protection.  Alcoholism may be considered a disability under the FEHA if it “limits” major life activities.  Alcoholism may be considered a disability under the ADA if it “substantially limits” major life activities. Government Code sections 12926, , subdivision (a), 42 U.S.C. §

 Current illegal drug use is not a disability under the FEHA or the ADA. ◦ Employers may make hiring and disciplinary decisions based on an employee’s current illegal drug use.  A psychoactive substance use disorder resulting from current illegal drug use is not a disability under the FEHA or the ADA. Government Code section U.S.C. §

 Under the ADA, an individual may have a protected disability where he or she: ◦ has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal drug use. ◦ has otherwise been rehabilitated successfully and is no longer engaging in illegal drug use. ◦ is participating in a supervised rehabilitation program and is no longer engaging in illegal drug use. 42 U.S.C. § See Government Code section

 Employers may ask job applicants about current illegal drug use.  Employers may not ask job applicants about: ◦ Former illegal drug use or addiction. ◦ Treatment for alcohol or illegal drug use. ◦ Legal medications prescribed by a physician that might reveal an applicant’s physical or mental disability. Government Code section U.S.C. §

 Employers may ask whether a job applicant: ◦ Drinks alcohol. ◦ Has ever been convicted of driving under the influence of alcohol.  Employers may not ask questions intended to determine whether a job applicant has alcoholism. Government Code section U.S.C

Pre-Employment Drug Testing  Employers may make job offers conditional on consent to drug and alcohol testing as long as: ◦ Candidates are given notice that drug and alcohol testing will be part of the application process; ◦ Testing will be minimally intrusive; and ◦ There are safeguards to restrict access to testing results.  Medical examinations must be uniformly administered to all entering employees in similar positions. Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d

 A manager is consulting references for Michelle, a job applicant for an open position. Michelle’s previous employer says that Michelle was great at her job, and mentions that she is a recovering cocaine addict.  The manager decides he doesn’t want to risk hiring an employee who might relapse, and chooses not to hire Michelle even though she is the most qualified candidate.  Does Michelle have a cause of action for failure to hire based on a protected status? 12

 Provided that Michelle is not currently using illegal drugs and a substantial period of time has passed since her past illegal drug use, Michelle is protected as a recovering drug user under the ADA.  An employer may not make an employment decision based solely on an applicant or employee’s past illegal drug use. 42 U.S.C. §

Medical Marijuana  The FEHA does not require employers to provide accommodations for candidates and employees who use medical marijuana under the Compassionate Care Act and fail a drug test.  The Compassionate Care Act only protects medical marijuana users from state criminal prosecution.  Compassionate Care Act does not protect employees from an employer’s legitimate business interest in whether employees use drugs that are banned under federal law. Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th

Drug Testing During Employment  Employer’s interest in testing must meet a higher standard to test employees versus job candidates.  Constitutional right to privacy can prohibit drug and alcohol testing of current employees where testing intrudes on the employee’s reasonable expectation of privacy and the employer’s interest doesn’t outweigh intrusion. Semore v. Pool (1990) 217 Cal.App.3d

Drug Testing During Employment  Factors weighed by the court: ◦ Amount of intrusion into employee’s privacy. ◦ Importance of safety in the workplace. ◦ Type of work performed by employee ◦ Other employer consideration. Semore v. Pool (1990) 217 Cal.App.3d

The owner of a construction company wants to institute a policy requiring submission to random drug tests for employees who operate heavy machinery at construction sites. How would you advise her on the constitutionality of implementing such a policy? 17

 The drug testing policy would likely be constitutional in California for employees whose work is deemed “safety sensitive.”  An employer’s “interest in reducing a substantial and real risk to plaintiff’s coworkers” or members of the public justifies a random drug test.  Here, construction jobs using heavy machinery will likely be considered “safety sensitive” positions. Smith v. Fresno Irrigation District (1999) 72 Cal.App.4th

 Implementation of a new drug testing policy should be handled with care. ◦ Here, employer provided a 6-month grace period between announcing and implementing the policy, allowing time for employees to seek treatment without risk of termination.  “Although advanced notice of drug testing does not automatically defeat an employee’s argument that the testing is unconstitutional, it does decrease his expectation of privacy.” Smith v. Fresno Irrigation District (1999) 72 Cal.App.4th

 Nothing in the FEHA or the ADA prevents an employer from regulating or prohibiting alcohol and drug use in the workplace.  Rules prohibiting use of alcohol and illegal drugs at the workplace are permissible as long as they are applied uniformly to all employees. 42 U.S.C. §

 An employee may not be disciplined or terminated based solely on his or her alcoholism if the alcoholism is considered a disability under the FEHA or the ADA.  Employees with alcoholism may be held to the same standards of evaluation as all other employees.  An employee with alcoholism may be disciplined or terminated for poor job performance even if the poor performance is related to his or her alcoholism. Government Code section12926, subdivision (k)(6). 42 U.S.C. § 12114(c)(4). Employees with Alcoholism 21

One of your employees, Mike, is an alcoholic. He frequently comes to work late because he is hung over. If you terminate Mike for his frequent tardiness, can Mike make a claim of disability discrimination on the basis of his alcoholism? 22

No, Mike does not have a claim under the ADA. An employee engaging in illegal drug use or alcohol abuse may be held to the same performance standards as other employees, even if their poor performance stems from substance use or abuse. Here, even though Mike’s tardiness was related to his alcoholism, he may still be held to the same standard of punctuality as all other employees. 42 U.S.C. §

Leave for Drug or Alcohol Treatment  Private employers regularly employing more than 25 employees must reasonably accommodate any employee who wishes to voluntarily enter a drug or alcohol rehabilitation program. ◦ As long as providing the accommodation does not impose undue hardship on the employer. Labor Code sections

Leave for Drug or Alcohol Treatment  Covered employers must provide unpaid leave or allow employee to use accrued paid sick leave to participate in treatment.  Covered employers must make reasonable efforts to keep information about an employee’s treatment private.  An employee who feels he or she has been denied reasonable accommodation for drug or alcohol treatment may file a complaint with the Labor Commissioner or with the DFEH. Labor Code sections

 If an employer is covered by CFRA and/or FMLA it may also be required to provide some time off for alcohol or drug rehabilitation if the condition is determined to be a “serious health condition.”  An employer may also be required to provide a leave of absence or other reasonable accommodation to a qualified individual with a disability. Government Code sections 12940, U.S.C. § 2611(4)(A)(i). 26

Last Chance Agreements  Where an employer provides reasonable but unsuccessful accommodations to an alcoholic employee, the employer and employee may enter into a “last chance agreement” or contract.  A last chance agreement outlines the employer’s continued accommodations and may condition continued employment on drug and alcohol testing or other proof of continued sobriety. 27

 Emerging area of law – few decisions from California courts.  California state courts and federal appellate courts have held that an employee who violates a last chance agreement may be terminated. ◦ Gosvenor v. Coastal Corp. (1996) 51 Cal.App.4th 805 (disapproved of on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.App.4th1019.)  “In the context of alcoholism, ‘reasonable accommodation’ must be limited in scope; continued ‘accommodation’ would simply enable an alcoholic to continue his or her drinking.” Fuller v. Frank (9th Cir. 1990) 916 F. 2d

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