In California, drug addictions and alcoholism are sometimes considered disabilities. People with disabilities receive certain legal protections in dealing with their employers. California has adopted protections for drug addicts and alcoholics in order to promote a policy that encourages substance abusers to seek treatment.

This article discusses some of California’s legal protections for people suffering from drug addiction or alcoholism.
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Legal Background on Drug and Alcohol Use in the Workplace

California workplaces are covered by a variety of laws—both state and federal—that impact drug and alcohol use in and out of the workplace. To some extent, employers must actively work to prevent drug and alcohol abuse in the workplace. At the same time, employers must refrain from discriminating against employees with disabilities. Often, drug addiction and alcoholism are considered disabilities.

Federal Laws on Drug or Alcohol Abuse in the Workplace

On the federal level, congress has adopted:

• The Drug Free Workplace Act of 1988,
• The Americans with Disabilities Act (“ADA”) of 1990, and
• The Rehabilitation Act of 1973.

The Drug Free Workplace Act places restrictions on government contractors, federal grant recipients, and individuals contracting with the federal government. These restrictions may force employers to adopt policies and programs to increase drug awareness and promote a drug-free workplace.

Private employers not covered by the Drug Free Workplace Act can receive protections if they adopt the standards required by the Act. So, even though the Drug Free Workplace Act may be limited in scope, many employers adopt its standards.

However, the Drug Free Workplace Act must be balanced against the ADA, which prohibits discrimination against individuals with disabilities. The ADA applies to private employers that have more than 15 employees. In many cases, drug addiction and alcoholism constitute a disability under the ADA.

The ADA defines “disability” to mean, among other things:
physical or mental impairment that substantially limits one or more major life activities of such individual . . . .

Federal regulations and federal courts have acknowledged that drug addiction and alcoholism are recognized disabilities under the ADA if they substantially limit one or more major life activities.

Importantly, however, individuals that are currently engaging in illegal drug use do not qualify for protection under the ADA.

Whether use is “current” within the meaning of the ADA can be a difficult question. Federal regulations define it as use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem.

It is possible, however, that employees suffering from drug addiction can seek treatment prior to being caught and still be found to have a disability. The critical factor is if, at the time disciplinary action is taken, the employee is participating in a supervised rehabilitation program and are no longer engaging in the illegal use of drugs. So, seeking treatment as soon as possible is critical to obtaining legal protections under the ADA.

Alcoholics may be entitled to greater protection than users of illegal drugs. Still, however, employers are permitted to: prohibit the use of alcohol at the workplace, require that all employees not be under the influence of alcohol during work, and discipline alcoholics if their use of alcohol adversely affects their job performance.

California Laws on Drug or Alcohol Abuse in the Workplace

Like the federal government, California has adopted a series of laws that attempt to balance the need for a drug-free workplace and the rights of employees with disabilities. For the most part, California law parallels federal law, with one critical exception: California generally requires employers to accommodate employees that want to go to a drug or alcohol rehabilitation program. The details of California’s laws on this topic are described below.

The California legislature has adopted:

• The California Drug-Free Workplace Act of 1990;
• Sections of the Labor Code relating to alcohol and drug rehabilitation; and
• The Fair Employment and Housing Act (“FEHA”).

Like the federal Drug Free Workplace Act, the California Drug-Free Workplace Act places special burdens on government contractors and the recipients of government grants. These burdens include posting notices in the workplace, providing employees with written statements regarding a drug-free workplace, and establishing a drug-free awareness program. Employers may be considered government contractors if they have any contracts with the state whatsoever, without regard to the size of the contract.^>

Even though Drug Free Workplace Act restrictions are specifically placed on government contractors and recipients of state grants, they aren’t necessarily limited to those groups. Employers across the state are permitted to, and often do, adopt similar workplace standards.

An employer’s right to adopt these policies, however, is limited by the employee’s right to be free from discrimination. In general, California prohibits employers from discriminating, in almost any manner, against employees that have a disability or medical condition, if the discrimination is based on that disability or condition.

California’s protections of mental conditions, physical conditions, and disabilities appear to extend at least as far as federal protections. So, because drug addiction and alcoholism are recognized disabilities under the ADA, they should also be considered disabilities or mental conditions under California’s FEHA.

However, if the employee is unable to perform an essential duty of his or her job, even with reasonable accommodations, the employer may discharge them. Moreover, the California Supreme Court has held that employers are not required to accommodate the use of illegal drugs.

Additionally, California also explicitly does not protect current users of drugs. In other words, California’s protections only extend to people that are currently seeking help for drug addiction, but are not currently using drugs.

Drug Rehab for California Employees

Perhaps the most important set of California laws protecting employees suffering from drug addiction or alcoholism is Labor Code sections 1025 through 1028. These sections apply to every California employer as long as they employ 25 or more people.

Under these Labor Code sections, employees who wish to voluntarily enter and participate in an alcohol or drug rehabilitation program must be reasonably accommodated by their employer, as long as the employer does not suffer an undue hardship. The employer must also make reasonable efforts to safeguard the privacy of the employee.

What constitutes a “reasonable accommodation” is heavily litigated and will usually turn on the facts of the case. However, courts have noted that a reasonable accommodation will usually include, at least, job restructuring, part-time or modified work schedules, and reassignment to a vacant position.

Employers are not required by these sections to provide paid time off, but employees are entitled to use sick pay to participate in a drug or alcohol treatment program. It may also include time off to remedy the condition.

Employees that have been refused a reasonable accommodation to seek drug or alcohol treatment programs may file complaints with the Division of Labor Standards Enforcement. In other words, they have a special cause of action to sue their employer for violations regarding their right to seek drug or alcohol treatment programs.

Important Rules

The takeaway rules from these statutes can seem complicated. To simplify it a bit:

• In general, an employer may adopt a rule prohibiting the use of drugs or alcohol.
• Employers may not discriminate against employees that have suffered from drug or alcohol abuse in the past.
• Employers are not required to give protections to current users of illegal drugs.
• Employees may be entitled to a leave of absence to seek treatment at a substance abuse program.
• A leave of absence must be at a qualified substance abuse program.
• California employees must seek treatment before they are punished for the current use of drugs or alcohol. They cannot be discharged then seek treatment and expect legal protections.
• All employment, including temporary employment is included in these protections as long as the employer hires 25 or more employees.
• Employees are generally not entitled to pay during a leave to seek drug or alcohol treatment unless they have accumulated sick leave.
• Employees have privacy protections regarding their participation in a drug or alcohol rehabilitation program.

Conclusions

If you have questions about these or similar issues, your best bet is to contact an employment lawyer in your area. They can look at the facts of your specific situation to determine whether you are entitled to specific legal protections.

More important than your legal protections is your health. If you are suffering from drug addiction or alcoholism, it is important to seek treatment immediately. The long-term benefits of sobriety far outweigh those obtained in the short-term by keeping your job. Your mental and physical health, family life, personal life, and economic status can all be improved by long-term sobriety. If you believe you are suffering from addiction, seek treatment as soon as possible.

If you have been terminated and believe that it was for unlawful reasons, call a Los Angeles and Orange County employee-rights attorney at (949) 954-8181. Our consultations are complimentary and confidential.

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References

41 U.S.C. § 8101–8106.
42 U.S.C. § 12101–12213.
29 U.S.C. § 701–796l.
See, e.g., 42 U.S.C. § 12114, subd. (c)(3).
42 U.S.C. § 12112, subd. (a).
42 U.S.C. § 12111.
42 U.S.C. § 12102.
Thompson v. Davis (2002) 295 F.3d 890, 896; 28 C.F.R. § 35.104.
42 U.S.C. § 12114, subd. (a).
28 C.F.R. § 35.104.
42 U.S.C. § 12114, subd. (b).
Importantly, subdivision (a) of 42 U.S.C. § 12114 specifically excludes current users of illegal drugs but not current alcoholics.
42 U.S.C. § 12114, subd. (c).
Labor Code, § 1025–1028.
Gov’t Code, § 8350–8357.
Labor Code, § 1025–1028.
Gov’t Code, § 12900–12996.
Gov’t Code, § 8355.
Gov’t Code, 8351, subd. (e), 8355.
Gov’t Code, § 12940, subd. (a).
Gov’t Code, § 12926.1.
Thompson v. Davis (2002) 295 F.3d 890, 896; 28 C.F.R. § 35.104.
Gov’t Code, § 12940, subd. (a)(1), (a)(2); Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925–926.
Ross v. RagingWire Telecommunications, Inc., supra, 42 Cal.4th at p. 926.
Gov’t Code, § 12926, .subd. (j)(5), (l)(6); Loder v. City of Glendale (1997) 14 Cal. 4th 846, 883 fn. 15.
Labor Code, § 1025.
Labor Code, § 1026.
McAlindin v. County of San Diego (1999) 192 F.3d 1226, 1237.
Labor Code, § 1027.
Labor Code, § 1028.
Gosvener v. Coastal Corp. (1996) 51 Cal.App.4th 805.