We have an employee who we believe has a prescription drug problem. We have confronted him twice over the past year and he had denied it. Can we force him to go to rehab in order to keep his job?
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Thank you for your inquiry about an employee who may have a prescription drug problem.
An employer in the situation you describe will need to consider several issues including FMLA leave and the ADA. You have indicated Ohio as the jurisdiction relevant to your inquiry, therefore our response includes information on state law where applicable.
FMLA
Substance abuse may be a serious health condition if one of the tests for establishing a “serious health condition” is met. However, FMLA leave may be taken only for treatment of substance abuse by a healthcare provider or by a provider of healthcare services on referral by a healthcare provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.
Treatment for substance abuse does not prevent an employer from taking employment action against an employee. However, an employer may not take action against an employee because the employee has exercised his or her right to take FMLA leave for treatment.
If the employer has an established policy, applied in a nondiscriminatory manner, communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, the employee may be terminated pursuant to that policy even if the employee is presently taking FMLA leave.
Ohio does not have a comprehensive family and medical leave law that applies to private employers.
ADA
An individual who is currently using drugs illegally is not protected by the ADA and may be denied employment or be fired on the basis of such use (illegal drug use includes the illegal use of prescription drugs that are controlled substances). However, an individual who has had a drug problem but is no longer using drugs illegally is protected, provided he or she has completed or is participating in a supervised rehabilitation program.
The ADA does not prevent employers from testing employees for current illegal drug use or from making employment decisions based on verifiable results. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, an employer will not have to show that the administration of the test is job related and consistent with business necessity.
The best course in the situation you describe may be to address the employee’s performance problems and any observed behaviors that violate workplace conduct rules. Staying focused on these work-related requirements and following an established disciplinary process may help the employer avoid a claim that it discriminated against the employee.
According to the EEOC, an employer may (but is not required to) offer a “firm choice” or “last chance agreement” to an employee who otherwise could be terminated for poor performance or misconduct that results from alcoholism or drug addiction.
Generally, under a “firm choice” or “last chance agreement” an employer agrees not to terminate the employee in exchange for an employee’s agreement to receive substance abuse treatment, refrain from further use of alcohol or drugs, and avoid further workplace problems. A violation of such an agreement usually warrants termination because the employee failed to meet the conditions for continued employment.
Under the ADA, making disability-related inquiries or requiring a medical exam for an employee violates the ADA unless the inquiry or exam is job related and consistent with business necessity. This requirement is satisfied if an employer has a reasonable belief that an employee’s performance or conduct is related to a medical condition. In addition to requiring a medical exam, the employer also may, as appropriate, require the employee to:
(1) go to an Employee Assistance Program (EAP);
(2) produce medical documentation that he/she is fit to continue working (including the ability to meet minimum performance requirements and exhibit appropriate behavior); and/or
(3) undergo an appropriate medical examination related to the performance and conduct issues.
It’s important to note that the employer must have a reasonable belief based on objective evidence that the employee’s performance problems are related to a medical condition.
Because of the complexity and potential liability in this situation, we recommend that the employer consult with legal counsel who can review the relevant facts and circumstances and provide advice on how the employer should proceed.