Drug use in the workplace is not an issue most employers want to consider; but if yours is a company employing more than 15 employees (or in some states more than 6 employees), you will have to comply with the regulations laid out in the Americans with Disabilities Act, or ADA, which means that you will have to make certain concessions regarding current legal and past illegal drug use by employees.

The Americans with Disabilities Act of 1990 was enacted to afford protections to qualified job applicants and employees. It covers a number of different disabilities. Past rehabilitated drug use is included in that list of disabilities; current legal drug use is included as well. As an employer, you’ll need to be well-versed in your rights and your responsibilities towards job applicants and employees in order to avoid being in violation of the law.

What To Know About Illegal Drug Use And The ADA

The first thing to know about the ADA in respect to drug use is that the ADA never extends protection to current users of illegal drugs. Current illegal drug use is always a grounds for firing or not hiring a person—as long as it can be substantiated. Furthermore, the ADA does not restrict

• Testing of job applicants or employees for illegal drug use

• Employment decisions (hiring, firing, suspension, etc.) based on illegal drug use that can be verified

It should be noted that while pre-employment medical examinations are restricted under the ADA, testing for illegal drug use is not considered a medical examination.

On the other hand, past illegal drug use—even when known and disclosed—cannot be used against a person in hiring or employment, so long as that person is not currently using drugs. Illegal drug use must be “current” under the ADA if it is to be used as a basis for denial of employment or dismissal. People who are not currently using drugs, have not for some time past, and/or are currently enrolled in a substance abuse program (but still not using drugs) cannot be discriminated against.

The difficulty comes in determining what constitutes “current” drug use. The ADA does not clearly define a set amount of time, and courts have delivered differing opinions on the matter. In the end, the issue usually comes down to the person’s history, attempts at rehabilitation, and time from last known drug use.

What To Know About Legal Drug Use And The ADA

Additionally, employers must take care not to lump legal and/or prescription drug use in with illegal drug use; legal drug use cannot be used against a person in any way under the ADA. When legal drugs are used in an abusive fashion (i.e., not according to medical orders), the abuse may fall under the category of illegal drug use and the above regulations will apply.

Drug use by employees and prospective employees as it relates to the ADA is a bit of a gray area. Between employee rights, the need to prove drug use, time and rehabilitation factors, and the fine points surrounding legal and prescription drug use, navigating the waters of the ADA can be quite confusing. As in all employment matters, whenever there is a doubt, it is in the best interest of the employer to consult legal counsel, but as well, employers must always consider their burden of proof and make sure that they have taken steps to build a solid case in their favor.

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