by Stacey Lett, Director of Operations – Eastern U.S. – Proactive Technologies, Inc.
A prevalent challenge faced by many employers is what to do with job
applicants with a record of past drug use. Current drug use detected during screening is more cut and dry, but candidates that are going through, or went through, treatment and have maintained a clean life-style since need more care to avoid running afoul of the Americans with Disabilities Act of 1990.
The Americans with Disabilities Act protects employees and job applicants from discrimination based on past drug addiction in most cases. In a article for the Society for Human Resource Management (SHRM) website by Roy Maurer, “The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination based on past drug addiction. These individuals qualify as having a disability if they successfully completed a supervised drug rehabilitation program or are currently participating in such a program and are no longer using prohibited drugs.”
One expert he interviewed, Rayford Irvin, the Houston district director for the Equal Employment Opportunity Commission (EEOC), said “Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs.” “When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”
Lawyers interviewed for the article suggested that employers amend their policy manuals regarding drugs and specify exclusions in line with the ADA and reasonable accommodation provisions issued by the EEOC.
Aside from the practices used in the recruitment, interviewing and selection process which Mr. Maurer outlined fairly well, any defenses for not accommodating an individual with prior drug use, but who has completed or is currently participating in a treatment program, or decisions on what that reasonable accommodation would look like would have to be made based on data from a credible and thorough job/task analysis. The data derived and validated would include the core skill and ability requirements of the tasks of the job classification, how important they are in the scope of the entire job classification (i.e are they Bono Fide Occupational Qualifications (BFOQ)) and if any reasonable accommodations can be made for skills and abilities that may be impaired by an individual based on their stage of recovery.
If a job safety analysis was included in the job/task analysis, or performed separately, the data can be used to identify potential safety considerations that may impact employability of a candidate who has completed, or who is currently in, treatment. These, too, have to be a BFOQ in order to avoid enforcement action or litigation.
For incumbent workers who violate company drug policies prohibiting use of drugs while employed and onsite, the policy if structured correctly and enforced evenly will provide the employer protection even if a BFOQ argument is raised. If the employee accepted employment based on these policies that were presented and signed recognize it as a “condition of employment.” But when drug use is discovered by an incumbent worker after the probationary period, the employer decides to sponsor the employee in a treatment program, the employer may be responsible for reasonable accommodation and need to treat the incumbent like the pre-hire candidate.
The best approach for the employer is to consider legal direction in determining company policy regarding all matters involving the prior, current or future drug use by candidates and incumbents. Opioid addiction is permeating all corners of society…including the workplace.
If you would like to discuss how a job/task analysis data can help your firm address reasonable accommodation issues and provide legal defensibility, contact a Proactive Technologies representative today to schedule a live online GoToMeeting videoconference briefing to your computer. This can followed up with an onsite presentation for you and your colleagues. A 13-minute promo briefing is available at the Proactive Technologies website and provides an overview to get you started and to help you explain it to your staff.
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