THE ADA's FAILURE to PROTECT DRUG ADDICTED EMPLOYEES WHO WANT to SEEK HELP and REHABILITATION
Total Page：16
File Type：pdf, Size：1020Kb
THE ADA's FAILURE TO PROTECT DRUG ADDICTED EMPLOYEES WHO WANT TO SEEK HELP AND REHABILITATION Samantha A. Hill* I. INTRODUCTION Illegal drug use is a prevalent problem in the United States that often goes untreated and that is not limited to a single social class or to a specific category of employment.2 Employers in a variety of businesses throughout the country must deal with the difficulties of controlling substance abuse in the workplace and handle problems that may arise from drug use among employees. Several laws have been enacted to protect employees who are willing participants in drug rehabilitation from being discharged from their jobs while they seek treatment for their "disability." 3 * J.D. Candidate, 2007, University of Pennsylvania Law School; B.A., 2004, University of Pennsylvania. I would like to thank my parents, Fran and Phil and my sister, Athena for their continuing support and also, all the editors of the Journal of Business and Employment Law who worked on this article. 1. See Drug Addiction, Millions of Americans In Denial About Their Own Drug Abuse, http://www.drug-addiction.com/drugs and-denial.htm (last visited Jan. 29, 2007) (providing statistics from 2001 that show "of the 5.0 million people who needed but did not receive treatment in 2001, an estimated 377,000 reported that they felt they needed treatment for their drug problem. This includes an estimated 101,000 who reported that they made an effort but were unable to get treatment and 276,000 who reported making no effort to get treatment"). 2. See generally Substance Abuse & Mental Health Services Administration, Worker Alcohol, Drug Use and Workplace Policies by Occupation, http://oas.samhsa.gov/occupation.htm (showing statistics of drug use among various occupations in the United States in 1994 and 1997). 3. See, e.g., Rehabilitation Act of 1973, 29 U.S.C. § 701 (2000) (protecting individuals in recovery from alcoholism or drug dependence and forbidding employers from discriminating against job applicants and employees because of their history of or treatment for alcohol or drug dependence, if those individuals are qualified to perform their jobs); see also LEGAL ACTION CENTER, EMPLOYMENT DISCRIMINATION AND WHAT To Do ABOUT IT: A GUIDE FOR NEW YORK COUNSELORS FOR INDIVIDUALS WITH CRIMINAL RECORDS OR IN RECOVERY FROM ALCOHOL AND DRUG DEPENDENCE (2000), available at www.lac.org/pubs/gratis/employment-discrimination.pdf (providing legal advice to 974 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW [Vol. 9:4 However, these laws offer limited employee protection so that job productivity and capital are not sacrificed in order to accommodate employees who are not serious about treatment.4 Case law demonstrates that such laws are often effective in practice and protect employees who are currently enrolled in rehabilitation programs or those who are already rehabilitated for prior drug addictions from being fired on that basis.' But the plaintiffs who successfully bring suits against their employers for discrimination under the Americans with Disabilities Act (ADA)6 and the Family and Medical Leave Act (FMLA)7 are usually blue-collar workers and employees in low-income jobs.8 Although many wealthy individuals in high-powered jobs abuse illegal drugs, there are few, if any, cases of professionals bringing drug-related discrimination suits against their employers. Thus, in practice, the ADA and FMLA, when effective at all, protect mainly blue-collar workers and employees in low-income jobs. This Comment will show that professionals in the work-force are equally susceptible to drug addiction and that laws designed to protect employees with disabilities from employment discrimination fail to protect middle- class professionals who use drugs and want to undergo rehabilitation. This phenomenon may mean that the law perpetuates a pertinent and widespread problem instead of providing a remedy. II. DRUGS IN THE WORKPLACE There is no dispute that drugs in the workplace are a problem in the United States. Studies show that "almost 73 percent of all current drug users ages 18-49 are full- or part-time employed [which amounts to] more than 8.3 million workers." 9 A study from 1992 showed that substance counselors who inform those with criminal records or substance abuse problems of the legal protection available to them if they are discriminated against by their employers on the basis of their histories or alleged disabilities). 4. See, e.g., The Americans with Disabilities Act, 42 U.S.C. § 12114 (2000) (specifying that individuals currently engaged in the illegal use of drugs are excluded from protection under the Act). 5. See, e.g., Hernandez v. Hughes Missile Systems Co., 362 F.3d 564, 568 (9th Cir. 2004) (applying the ADA to prohibit an employer from making an employment decision based on an employee's disability and including within the meaning of "disabled" under the Act an employee who has been rehabilitated for prior drug-reliance and is no longer using drugs). 6. 42 U.S.C. §§ 12111-12114 (2000). 7. 29 U.S.C. § 2601 (2000). 8. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 44 (2003); Hernandez, 362 F.3d at 566 (evidencing plaintiff's position as a janitor and then later as a service technician). 9. Drug Addiction, Drugs at Work: The Substance Abuse Costs to Society and Workplaces are Huge, http://drug-addiction.com/drugs..aLwork.htm (last visited Jan. 29, 2007). 2007] ADA's FAILURE TO PROTECT EMPLOYEES SEEKING HELP 975 abuse cost society about $246 billion that year, and estimated that this amount would increase by $30 billion over the following three years.'0 In addition, data from 1994 and 1997 national household surveys of drug use conducted by HHS" and SAMHSA 12 showed that the percentage of full- time workers between the ages of eighteen and forty-nine who used illicit drugs in those years totaled 7.6% and 7.7%, respectively, and that those who abused alcohol totaled 8.4% and 7.5%, respectively. 3 The categories of employment in the study ranged from blue-collar jobs, such as construction work and machine operators and inspectors, to white-collar jobs, such as executive, administrative, and managerial positions and professional specialties.14 Although there was a disparity in the illicit drug use and heavy alcohol use among the different occupational categories, 5.1% of those with a professional specialty reported illicit drug use--about the same percentage reported by movers, technicians, administrative support staff, protective service workers, and those in executive, administrative and managerial positions. 5 Furthermore, within the professional category, there was little to no change over the three-year span from 1994 to 1997 in the amount of either drugs or alcohol used by employees.' 6 Such data suggests that the abuse of drugs and alcohol by professional workers is not a trend, but an ongoing problem within the workplace. III. THE FEDERAL GOVERNMENT'S ATTEMPT TO CONTROL SUBSTANCE ABUSE IN THE WORKPLACE AND EMPLOYMENT DISCRIMINATION The federal government has taken measures to deal with employee 10. Id. 11. HHS is the U.S. Department of Health and Human Services which is a "Cabinet department of the United States government" devoted to "protecting the health of all Americans and providing essential human services." Wikipedia, United Stated Department of Health and Human Services, http://en.wikipedia.org/wiki/UnitedStates_Department-of Health andHuman_Services (last visited Jan 29, 2007). 12. SAMHSA is the Substance Abuse and Mental Health Services Administration, a "US federal agency charged with improving the quality and availability of prevention, treatment and rehabilitative services in order to reduce illness, death, disability, and cost to society resulting from substance abuse and mental illness." Wikipedia, Substance Abuse and Mental Health Services Administration, http://en.wikipedia.org/wiki/Substance-Abuse and MentalHealthServicesAdministratio n (last visited Mar. 29, 2007). 13. Worker Alcohol and Drug Use and Workplace Policies by Occupation, supra note 2 (providing a Worker Report from 1997 that shows Illicit Drug Use and Heavy Alcohol Use by Demographic and Workplace Characteristics for that year). 14. Id. 15. Id. 16. Id. 976 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW [Vol. 9:4 drug use by offering protection to those who are willing to seek 1 7 rehabilitation through both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). 18 These acts recognize the importance of protecting those with histories of drug or alcohol abuse from being discriminated against by employers or discharged from employment based on their abuse, provided they have sought rehabilitation and are no longer abusing the substance. The ADA specifically offers protection to any individual who "has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use."1 9 Thus, the Act is narrowly tailored to exclude any employee who is still using the drug from being protected under the Act. While it is important to shield employers by limiting the protected class to those who have manifested a true intent to seek help for their drug addictions, 20 it is also unrealistic to assume that every job allows an employee the time to enroll in a rehabilitation program and achieve rehabilitative success without interfering with his or her work hours or responsibilities. 2' In many cases, an employee may have to seek permission from the employer for the time to engage in rehabilitation. Such an employee would fall short of belonging to the defined class protected by the ADA, since the employer would have knowledge of the substance abuse prior to treatment.22 Thus, the employee would risk discharge by confronting the employer to ask permission for a leave of absence even if he or she was serious about, and personally dedicated to, seeking treatment for the problem.