From our perspective we appear to be experiencing an uptick in the reporting of employees testing positive for controlled substances, whether how to address positive tests for cannabis in those states in which it is legal to use either medically or recreationally, or other substances.  We cannot quantify this uptick, but we have seen clients needing to address varied substance abuse matters.  A recent inquiry regarding the timing of an employee’s notice of the need to undergo rehabilitation in relation to a substance abuse test has triggered the need to be mindful of evaluating the application of several employment laws to such requests.

Family and Medical Leave Act

The U.S. Department of Labor has long recognized through two non-administrator opinion letters that an employee’s treatment for substance abuse may qualify as a serious health condition for purposes of FMLA leave.  See FMLA-69 (July 21, 1995) and FMLA-59 (April 28, 1995). The opinion letters recognize that time in rehabilitation can qualify for FMLA leave if the addiction to be treated constitutes a serious health condition. The rehabilitation needs to be provided by a health care provider or by a provider of health care services, as those terms are defined by the FMLA, or referral by a health care provider to qualify.

Absences caused by the employee’s substance use itself, separate from treatment, however, do not qualify for FMLA leave. The employee has to be in applicable treatment or scheduled to start treatment for such time to qualify as FMLA covered leave. Therefore, once an employee notifies an employer that he or she is scheduled to, or is now in, qualified rehabilitation, the employer is on notice that the time may need to be treated as FMLA leave and the employee will need to provide appropriate certification documentation to qualify for leave.

The Americans with Disabilities Act (and Comparable State Disability Laws)

An employee or applicant currently engaging in the use of illegal drugs is not a qualified individual with a disability and therefore is not protected under the ADA. However, the ADA also provides that a person who has successfully completed a supervised drug rehabilitation program or is participating in a supervised rehabilitation program, and who is no longer engaging in such use, may be deemed a qualified individual with a disability. Of course, to qualify for coverage the addiction itself has to constitute a physical or mental impairment that substantially limits one or more major life activities.

In the earlier years of the ADA, federal courts narrowly interpreted these rehabilitation provisions.  The courts generally recognized that drug addiction could be an ADA covered disability. The question was whether an employee entering or about to enter rehabilitation is no longer engaging in drug use.  For example, one court concluded that illegal drug use in the weeks or months before treatment meant that the employee was engaging in current illegal drug use. Another concluded that an employer did not violate the ADA when it notified an employee of termination before the employee informed the employer that he was entering rehabilitation.

The ADA was amended in 2009 to broaden the scope of covered impairments and place greater focus on the need to evaluate and provide a reasonable accommodation for ADA covered disabilities.  As such, an employer will need to evaluate a request to take leave to enter rehabilitation as a reasonable accommodation.

Employers remain fully able to prohibit the illegal use of drugs and the use of alcohol at the workplace and require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace.  Therefore, if an employee tests positive for an illegal substance and the employer is ready to proceed with termination on the grounds that it violates who enters a qualified rehabilitation program.  Employers also continue to be able to implement “last chance” agreements to require employees to continue to remain substance free after completion of rehabilitation.

Accident Testing and OSHA

Several years ago, OSHA issued new rules related to workplace injury and accident testing.  Specifically, if an employer automatically tests for drugs after a workplace injury or accident and terminates based on a positive test, OSHA deems that to constitute retaliation, especially if the employee reports the workplace accident.  See OSHA Memorandum (October 19, 2016). It is conceivable that the same potential for a retaliation claim could apply if the employee self-reports the need to enter rehabilitation and consequently the person’s employment is automatically terminated.

OSHA’s new rules place that limit on automatic testing, but allow an employer to proceed with a termination if there is evidence of reasonable suspicion of use or impairment on which the testing of the employee was based.  See OSHA Memorandum (October 11, 2018).

Takeaways

Employers should evaluate several pieces of information in determining the best course of action whenever an employee notifies an employer that they are seeking rehabilitation for a substance abuse problem.

  • What do your policies provide regarding rehabilitation and requesting rehabilitation?
  • How much leave do you provide under your policies?
  • Do you permit unpaid leave?
  • Is there a positive test before the request?
  • Was the request made at the same time as the test?
  • If considering extending leave to the employee, obtain information to ascertain whether it is provided through a health care provider. Further, request information regarding duration and date for release to return to work and evaluate whether the employee will be able to perform the essential job functions after release.
  • Do not automatically terminate employment for a positive test result after an injury accident.

*With both acknowledgment, and apologies, to the late Warren Zevon for the title of this post.

About the Author:

David R. Deromedi is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He has primary responsibility for all wage and hour and employee health and safety matters for firm clients and is primary counsel to Japanese employers doing business in the U.S. for employment law and employment relations issues. He can be reached at 313-223-3048 or dderomedi@dickinsonwright.com and you can visit his bio here.