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Volume XII, Number 279

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Addiction and Substance Abuse in a Post-COVID Era: Navigating Stormy Employment Waters

As employees continue returning to work in a post-pandemic era, employers are facing new and difficult challenges on a scale not experienced prior to March 2020. In particular, the COVID-19 pandemic has coincided with increased global rates of a variety of mental health challenges.

One such challenge has involved a reported increase in the use of alcohol and other drugs during the course of the pandemic.  A May 2021 study found that nearly one-third of Americans reported increased alcohol consumption since the start of the COVID-19 pandemic, and 29% of drug users reported increase in drug use during the same period. 

Of particular consequence to our readers, a quarter of those surveyed reported their drug and or alcohol use made it difficult to complete job duties and responsibilities, and nearly 20% reported missing work at least once per week due to substance use.  When substance use disorder (SUD) impacts employees’ performance or otherwise disrupts the workplace, employers face challenges in navigating the often blurry line between imposing appropriate discipline and providing the help such employees need while remaining in compliance with legal obligations.

What many employers don’t realize is that SUD (also commonly called “addiction”) can qualify as a disability under the Americans with Disabilities Act (ADA) since it is a mental impairment that substantially limits one or more major life activities.  Just because an individual with SUD may be disabled, however, they are not automatically afforded immunity from disciplinary action by an employer.  Take the case of a cocaine user who is currently using cocaine (even if not during working hours): The Equal Employment Opportunity Commission (EEOC) takes the position that the user is afforded “no protection” under the ADA if the employer acts on the basis of such use because the act of using cocaine is, itself, illegal. 

Contrast that with an alcoholic, whom the EEOC categorizes as “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.”  In other words, “a person who currently uses alcohol is not automatically denied protections simply because of the alcohol use.”  In this case, the employer must consider whether an alcoholic is meeting the employer’s reasonable expectations in spite of their alcoholism before taking any adverse action; if so, there may be limited bases to enact any disciplinary action on the basis of that employee’s status as an alcoholic alone.  On the other hand, if the employee is repeatedly late to work, missing deadlines, or otherwise not meeting the employer’s expectations, there is a stronger basis to enact disciplinary measures. 

In addition, employers may also have an obligation to accommodate individuals with SUD if the employee requests an accommodation or the employer is otherwise on notice that such an accommodation may be necessary to allow the employee to perform the essential job functions.  Accommodations may include time off to attend rehabilitation or counseling, job reassignment to less stressful positions, or remote work to limit safety risks. Before providing such an accommodation, however, employers should, as with any other disability, engage in the interactive process and seek documentation from the employee’s providers to ensure the appropriate accommodation can be provided. 

Because of the many complications mental health, and in particular, addiction, can present in the workplace, a thoughtful and individualized approach to addressing such issues is key to both limiting liability and providing the assistance employees need. Consultation with legal counsel should always be considered before enacting discipline and when reviewing accommodation requests.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 227
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About this Author

John Litchfield, employment lawyer, labor litigator, Foley Lardner, Chicago Law Firm
Associate

John Litchfield is an associate and litigation attorney with Foley & Lardner LLP. His primary practice includes counseling clients on a wide range of employment-related matters, including disability accommodations, family and medical leave issues, wage and hour compliance, and other state and federal employment laws. Mr. Litchfield also counsels clients on the intricacies of the Genetic Information Non-Discrimination Act of 2008. He has represented employers in federal and state litigation matters relating to race and disability discrimination, FMLA claims, and...

312-832-4538
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