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Are employees who use drugs covered by the ADA?

The Americans with Disabilities Act protects people with disabilities from discrimination in the workplace. However, this may not apply to one of your Florida employees who is using illegal drugs, so you will need to know when you can terminate the employment. The United States Commission on Civil Rights notes that up to 25 percent of the workforce in this country is using an illegal drug or alcohol while on the clock some of the time, making it likely that this is an issue you may have to deal with at some point.

It is important to understand how the term “current” is intended under the ADA and how it has been interpreted by the courts. When determining whether your employee is a current user of drugs, you have some leeway as you examine how long ago the use took place and decide if that indicates it is ongoing or resolved. While a person who has used drugs in the past few hours or days can certainly be considered a current user, courts have found that current use could also mean the employee used drugs weeks or months prior.

As an employer, you have the right to fire an employee or deny a position to someone who is currently using drugs. You also have the right to ban drugs from the premises where you conduct business. Under the ADA, testing employees for drug use is allowed. If, however, you discover that an employee is a former addict who is no longer currently using drugs, firing them for that reason may be considered discrimination and doing so could leave your company susceptible to litigation. This is true even if the person is still undergoing treatment for their addiction, as long as they are not currently using. But, if you plan to terminate an employee for drug use, he or she cannot escape these consequences by entering a rehabilitation program.

Former addicts may qualify for reasonable accommodations by their employer, which relate to their treatment, such as time off for medical purposes or to attend a support group meeting. Because the court system typically uses a case-by-case approach when analyzing a termination, this information should not be interpreted as legal advice.

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