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Chapter VIII: Drug And Alcohol Abuse

8.7 Efforts to Prohibit Drug and Alcohol Use in the Workplace

The ADA does not prevent efforts to combat the use of drugs and alcohol in the workplace

The ADA does not interfere with employers' programs to combat the use of drugs and alcohol in the workplace. The Act specifically provides that an employer may:

While the ADA permits an employer to discipline or discharge an employee for illegal use of drugs or where alcoholism results in poor performance or misconduct, the Act does not require this. Many employers have established employee assistance programs for employees who abuse drugs or alcohol that are helpful to both employee and employer. However, the ADA does not require an employer to provide an opportunity for rehabilitation in place of discipline or discharge to such employees. The ADA may, however, require consideration of reasonable accommodation for a drug addict who is rehabilitated and not using drugs or an alcoholic who remains a "qualified individual with a disability." For example, a modified work schedule, to permit the individual to attend an ongoing self-help program, might be a reasonable accommodation for such an employee.

An employer can fire or refuse to hire a person with a past history of illegal drug use, even if the person no longer uses drugs, in specific occupations, such as law enforcement, when an employer can show that this policy is job-related and consistent with business necessity.

For example: A law enforcement agency might be able to show that excluding an individual with a history of illegal drug use from a police officer position was necessary, because such illegal conduct would undermine the credibility of the officer as a witness for the prosecution in a criminal case. However, even in this case, exclusion of a person with a history of illegal drug use might not be justified automatically as a business necessity, if an applicant with such a history could demonstrate an extensive period of successful performance as a police officer since the time of drug use.

An employer also may fire or refuse to hire an individual with a history of alcoholism or illegal drug use if it can demonstrate that the individual poses a "direct threat" to health or safety because of the high probability that s/he would return to the illegal drug use or alcohol abuse. The employer must be able to demonstrate that such use would result in a high probability of substantial harm to the individual or others which could not be reduced or eliminated with a reasonable accommodation. Examples of accommodations in such cases might be to require periodic drug or alcohol tests, to modify job duties or to provide increased supervision.

An employer cannot prove a "high probability" of substantial harm simply by referring to statistics indicating the likelihood that addicts or alcoholics in general have a specific probability of suffering a relapse. A showing of "significant risk of substantial harm" must be based upon an assessment of the particular individual and his/her history of substance abuse and the specific nature of the job to be performed.

For example: An employer could justify excluding an individual who is an alcoholic with a history of returning to alcohol abuse from a job as a ship captain.