The Americans with Disabilities Act requires that employers not discriminate against workers on the basis of their disability. I mentioned this in yesterday’s blog post. However, one area of “disability” that many employers don’t realize is covered is enrollment in a bona fide treatment program for drug or alcohol treatment. This is a lesson that Volvo learned the hard way.
Accepted and then Rejected
According to a press release, Volvo made an offer for employment to the candidate prior to sending him to his post-offer physical. So far, so good. However, during the physical, the worker mentioned to a nurse that he was in a drug rehabilitation program and was taking suboxone as part of his ongoing recovery from drug addiction. Suboxone blocks the effects of opioid addiction.
Upon reporting to work after the physical, the worker was told the offer had been withdrawn because of his suboxone use. The worker complained to the EEOC and the EEOC files a lawsuit on his behalf after trying to initially conciliate with Volvo.
Should have conducted an individual assessment
The EEOC said that rather than rejecting the candidate for his use of suboxone, Volvo should have conducted an assessment of the candidate’s situation. If they had done so, they would have discovered that the worker had been in the drug rehabilitation program for 8 years. As stated in a written summary:
Had Volvo looked closer, it would have discovered the applicant had been enrolled in the program since at least 2010, the agency said, undergoing monthly counseling and urine testing to prevent relapse into dependence on opioids and heroin. During this time, he worked as a dockworker and a sanitation worker without incident. At all relevant times, the applicant was qualified to perform the essential functions of the position at Volvo, the EEOC said.
As a result of the lawsuit, Volvo settled with the EEOC and paid the worker $70,000 plus had to commit to a program of education on the ADA. Under the agreement Volvo also:
…will distribute to all employees at its Hagerstown facility an ADA policy explaining the right to a reasonable accommodation for a disability unless it would pose an undue hardship. Volvo will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a direct threat as defined by the ADA, including providing a reasonable accommodation as required by the ADA. Volvo will also provide ADA training, including on how the law relates to drug screening and the use of lawfully prescribed medications. Volvo will report to the EEOC on how it handles any complaints of disability discrimination and post a notice regarding the settlement.
Under the ADA, current treatment for addiction is considered a disability. As long as an individual remains enrolled in the program they are covered by the protection of the law. If they are able to perform the essential functions of the job, with or without a reasonable accommodation, and they pose no threat to others then they should not be rejected for the job. Blanket rejections, such as for the use of a legal, prescribed substance, will likely lead to another $70,000 settlement.