The ADA treats drug/alcohol addiction very differently than it treats other disabilities.  While the law does not protect individuals who are currently using drugs and/or alcohol, the law does in fact protect employees with addictions who are in treatment and are no longer using drugs/alcohol. See D’Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998) (“Substance abuse is a recognized disability for purposes of the [ADA], and an employer may violate the [ADA] by taking an adverse employment action against an employee who has overcome past substance abuse problems.”).  Employees will always be protected so long as they are no longer abusing drugs or alcohol.

One of the difficulties is determining what makes an employee’s drug or alcohol abuse “current.”  With respect to a termination, courts have found that “[t]he relevant time period for determining whether an employee is a ‘current’ drug user, thereby precluding that employee from being deemed disabled by virtue of her drug use, is the time of her actual discharge.” Gilmore v. Univ. of Rochester Strong Mem’l Hosp. Div., 384 F. Supp.2d 602, 611 (W.D.N.Y. 2005) (citing D’Amico, 132 F.3d at 150).  “That does not mean that the employee must have literally used drugs on the date of her termination, but that her drug use must have been ‘severe and recent enough to classify her as a current substance abuser . . . .” Gilmore, 384 F. Supp.2d at 611 (citing D’Amico, 132 F.3d at 150).  As you might have expected, this will all be determined on a case by case basis.

 It is also important to note the distinction between actual drug addiction and alcoholism, and casual drug or alcohol use.  According to the EEOC Technical Assistance Manual on the ADA, “a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use.”

 Furthermore, because employees who are currently abusing drugs or alcohol will not be considered disabled for the purposes of the ADA, employers can administer drug tests for employees and fire any employees who fail those tests.  However, employers are not permitted to discriminate against employees who are not currently using drugs or alcohol simply because those employees have a history drug addiction or alcoholism.

If you were discriminated against by your employer because of your drug addiction or alcoholism, it’s smart to consult with a New York City employment attorney to learn about, and preserve, all your legal rights.

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