This is the second in a series of posts by my partner Amy Epstein Gluck.

Addiction—Behavior Issue or Disability?

Well, it depends.

While actors seem to check in and out of rehabilitation facilities with alarming regularity and then return to well-paying roles, the average employee may not have it so easy.

Let’s break it down.

An addiction—to alcohol, drugs, gambling, sex—may not rise to the level of a disability under the Americans with Disabilities Act (“ADA”) for a variety of reasons. The ADA unequivocally does not protect an employee who currently engages in the illegal use of drugs, but the law does account for a recovering drug addict (or alcoholic, gambling addict, etc.) who is otherwise qualified to do the job. What does that mean?

The ADA protects employees from discrimination in the workplace on the basis of a physical ormental disability. A “disability” within the meaning of the ADA is a physical or mental health impairment that limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities include all of those you do at work! Yes, like communicating, thinking, and learning.

Now, the ADA only protects employees who not only have this physical or mental impairment, but the employee must be “qualified”, i.e., possessing the skill, experience, and education to do the job and able to perform the essential functions of a position with or without reasonable accommodation, which I blogged about here.

However, regardless of whether or not an employee may be construed to have a disability under the ADA, that disability does not trump an employer’s performance and conduct standards. The law does not require an employer to accommodate an individual who has engaged in misconduct or performed under par.  An employee with an addiction problem is held to the same behavior and performance standards as all other employees regardless of whether or not the addiction qualifies as a disability.

For example, an alcoholic employee who is hung over on a regular basis is often truant, late, and either belligerent and insubordinate or confused and underperforming. As long as an employer disciplines all employees and enforces conduct and performance standards equally, the ADA will not immunize the addicted employee from discipline or termination, whether or not (s)he is disabled.

So, if you’re trying to work with an employee battling an addiction, good for you for trying to help instead of punish. But, this is a tricky area of ADA law, so like many other aspects of discrimination law, it is usually wise to seek help to navigate these waters.”