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If you are currently working and thinking about taking leave to address a substance use disorder, there are federal laws and policies in place to help protect you from losing your job.

Read below because you may qualify for protection based on your current situation. Also learn some tips on how to prepare to talk to your boss about taking medical leave for treatment.

Federal law prohibits employers from discriminating against employees based on disability. Many people with past or current drug or alcohol problems are protected from discrimination by:1

  • The Americans with Disabilities Act (ADA).
  • The Rehabilitation Act of 1973.

Can I Be Fired for Going to Rehab?

Man having a serious talk with female businesswoman, concept of talking to bossDrug and alcohol use disorders send millions of Americans to treatment every year. But, the number of people who actually attend is far lower than the number of those who need help. According to the Substance Abuse and Mental Health Services Administration, 23.5 million people over the age of 12 needed treatment for an illicit drug or alcohol abuse problem in 2009, but only 2.6 million actually received that treatment.2

According to reports, an estimated 10% to 25% of the American population is working while under the influence of drugs or alcohol.3 If you are working and dealing with addiction, you may be apprehensive about seeking treatment due to stigma or concerns about losing your job.

Believe it or not, work can actually be a place that enables the process of healing from addiction to begin. Sadly, many employees are unaware of resources that exist in their companies as well as the legal protections afforded to them. For example, you may have an employee assistance plan (EAP) at your workplace and be eligible to take unpaid leave for treatment under the Family and Medical Leave Act (FMLA). If you a struggling with addiction, it may benefit you to look into the resources that your employer offers. Admitting you have a problem to your employer and seeking the help you need can be the beginning of a new and sober life.

However, you may still be wondering, can I be fired for going to rehab? There is no hard answer to that question—certain laws will apply to protect you, but the employer does retain the right to terminate your employment in some cases (see below). It is important to understand, though, that you are far less likely to be fired if you seek treatment and use your legal protections to attend rehab than if you let your substance use negatively affect your work. Employers are not obliged to protect your job if your drug or alcohol use is impairing your ability to do your job and/or you are endangering yourself or your coworkers. In some cases, however, they will protect your job if you leave to attend treatment.

Family and Medical Leave Act

If you are wondering whether you have the right to take medical leave to attend treatment, you are not alone. Most people in your shoes have the same question. The answer is, in most cases, you can take leave.

Below are some options for how to take time off to address your addiction. FMLA gives employees up to 12 weeks of unpaid leave during a 12-month period for certain qualifying reasons.4 One qualifying reason for leave is a serious health condition by which your healthcare provider finds you unable to work at all or unable to perform any one of the essential functions of your job.

But, if you miss work because you are using a substance and not seeking treatment, you do not qualify for FMLA leave. Per the Department of Labor’s website, “FMLA leave may only be taken for substance abuse treatment provided by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.”4

This law does not always protect you from any legal action. Your employer cannot discriminate against you for taking FMLA leave; but, if they have a substance abuse policy that is given to employees and applied in a nondiscriminatory manner and it includes a provision on enrolling in treatment, they may terminate your employment, regardless of whether you are currently on leave for treatment. In the absence of any formal company policy on the issue, you may take FMLA leave and return to your job after completing leave.5 A good place to start to see if your employer has a policy in place is your new-hire paperwork. You can also ask your HR department.

Other eligibility requirements for FMLA leave include:

  • Your employer has 50 or more employees within 75 miles of the worksite.
  • You must have been employed by a covered employer for at least 12 months and worked at least 1,250 hours during the year before you take leave.

If your employer denies your leave request for treatment, it is possible that they have violated the ADA or the Rehabilitation Act and you may be able to file a complaint or charge.

If at any time, you feel like you have been discriminated against, you can file a complaint or charge with the U.S. Equal Employment Opportunity Commission.

For more information about medical leave rights (FMLA), you can visit https://www.dol.gov/whd/fmla/employeeguide.pdf or call (866) 487-9243.

The Americans with Disabilities Act (ADA) and Job Protection

The Americans with Disabilities Act (ADA) prohibits most employers from refusing to hire, firing, or discriminating against qualified potential employees based on their disability. The law protects workers in recovery from alcoholism or drug addiction and qualifies addiction as a disability.6

Current drug use is not protected and current alcohol drinkers are not protected if drinking affects their work. Depending on a number of factors, including whether you are coming to work high or drunk, or if you pose a threat to employees or yourself, you may not qualify for protection. However, if you have gone to rehab and are not using drugs, or you are currently enrolled in a rehab program and not using drugs, you are likely protected. It can get slightly tricky when defining "current" substance use because, in some cases, employees who have not used for weeks or months have been defined as "current" substance abusers and been terminated. Read more about this here.

One of the most important requirements of the ADA is for your employer to provide reasonable accommodations if you qualify as having a disability. A substance use disorder qualifies as a disability if it limits a major life activity.6 If you struggle with alcoholism, reasonable accommodation could involve a modified work schedule so that you can attend 12-step meetings or take a leave of absence. Under Section 501 of the Rehabilitation Act, there is a warning to employees with alcohol-related problems that there will be actions taken against them if they do not seek addiction treatment.

The Laws at a Glance

Below is an overview of laws that are useful to know about your drug or alcohol use:6

  • If you are currently using illegal drugs, you do not qualify as an individual with a disability if your employer decides to take action concerning your drug use.
  • Your employer cannot discriminate against you if you have a history of drug addiction but are no longer actively abusing substances.
  • The FMLA protects you if you take leave for a serious health condition.
  • You can take up to 12 weeks of unpaid time off from work per year under the FMLA to attend rehab.
  • Your employer can ban the illegal use of drugs at your workplace.
  • It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
  • You can be fired or denied employment if you are currently using illegal drugs.
  • Your employer can conduct drug tests to detect the use of illegal drugs.

How Should I Tell My Boss?

When you are ready to talk to your boss about entering treatment, you may have concerns about job security and confidentiality. In general, people with substance use disorders face stigma in the workplace. Employers may be afraid to hire people with a history of addiction. Unfortunately, employers may mistreat these employees, comparing them to other workers who have not been in recovery. Studies show that the stigma experienced by people with substance use disorders is comparable to HIV/AIDS, mental disorders, and being an ex-convict.7 This is a hard reality that you may want to take into consideration when you are preparing to talk to your boss.

Being honest about the fact that you need help can shift your boss’s attention away from suspicion and onto a proactive approach to helping you get better.But, you can take some comfort in knowing that the understanding of addiction has evolved and many people now see it as a chronic and relapsing disease of the brain and not a moral failure. This means it may be a lot less difficult to an approach an employer now vs. 20 years ago. You will still want to broach the topic carefully and with preparation, however. Below are some strategies that may help:

  • Have the conversation sooner rather than later. Because issues with addiction can spiral out of control, it is important that you talk to your boss as soon as you can. Having an upfront, honest conversation can save you from losing your job down the line.
  • Do your research. Learn about your company’s policies. You can read through your hiring paperwork or look online for details on your company’s policy and resources for struggling employees. If you can’t find any information, check with Human Resources.
  • Understand your legal rights. Knowing your rights under the law will make it easier to ask for the help and resources you need to get better and/or receive the accommodations you need to maintain your sobriety.
  • Avoid telling any coworkers before telling your boss. Office gossip spreads, and you’ll want to be able to craft the message you relay to your boss without it getting distorted through other channels first.
  • Have your treatment plan lined up. You can reach out to rehab centers that offer treatment to people who are working or who are taking leave. When you talk to your boss, you can let them know what your plans are so they feel confident in the positive steps you are taking to get better.
  • Be straightforward. Make sure you are clear with your employer about the time you need to take off for treatment. Even if you think that you can manage going to treatment and working, chances are your withdrawal symptoms are going to be uncomfortable and you will need or want enough time to rest. You may be drained after treatment and need some time to focus on applying the skills you learned to your daily life.
  • Be honest. You can open up to your boss about how treatment will help you become a better employee. If you are suffering in active addiction, there’s a good chance your work has already suffered to some degree and that both your boss and your fellow employees suspect a problem. Often, a person trying to hide their addiction isn’t as good at doing so as they think. Others may have noticed missed deadlines, changes in mood or appearance, odors like alcohol, etc. Being honest about the fact that you need help can shift your boss’s attention away from suspicion and onto a proactive approach to helping you get better.

Drug Testing

An employer can drug test at any time. If you are applying for a position, you may be required to take a drug test as a condition of your job offer. You may also be required to take drug tests even if the drug test is not related to your position or necessary for the business. If you test positive for drugs during a drug test, this information will be kept confidential, like any medical record.6 You may also be tested after returning from treatment. If you test positive, your employer may consider you a “current” drug user and terminate your job.6

Employers have the right to fire or discipline an employee based on their drug test results, even if you claim that you have recently stopped using illegal drugs. But, employers cannot fire you based on the presence of prescription drugs or legal medication like methadone, and an employer may not ask what prescription drugs you are taking before making a job offer.6

Employee Assistance Programs

If you are dealing with a drug or alcohol use issue and you are wondering where to start in seeking support, you can check with your work’s human resources department or read your hiring paperwork to see if your employer offers an Employee Assistance Program (EAP).8 EAPs are great ways to get access to screening, treatment referrals, and follow-up care. You may also be experiencing other issues in your life that are making your substance abuse issues worse – such as problems with a spouse or child, financial problems, or other personal issues, and this could be affecting your work. EAPs are completely confidential, and if you have one in place, you should take advantage of it.9

If you struggle with substance abuse problems and you’re worried that you might lose your job when you enter rehab, remember that you need to get the help you need no matter what stage of addiction you are in. You may feel like you are holding it together now, but sooner or later, you won’t be able to function at work if you continue down the spiral of addiction. You could lose your job. You could suffer even more severe consequences like drunk driving or overdose. Don’t wait until it’s too late. Get the help you need today.


References

  1. U.S. Department of Health and Human Services. (n.d.). Know Your Rights.
  2. National Institute on Drug Abuse. (2011). Treatment Statistics.
  3. Garcia, F. E. (1996). The determinants of substance abuse in the workplaceThe Social Science Journal33(1), 55-68.
  4. United States Department of Labor. (n.d.). Family and Medical Leave Act Advisor.
  5. United States Department of Labor. (1995). Wage and Hour Division (WHD).
  6. United States Commission on Civil Rights. (n.d.). Chapter 4: Substance Abuse under the ADA.
  7. Baldwin, M. L., Marcus, S. C., & De Simone, J. (2010). Job Loss Discrimination and Former Substance Use Disorders. Drug and Alcohol Dependence110(1-2), 1–7.
  8. U.S. Office of Personnel Management. (n.d.). Work-Life: Employee Assistance Program.
  9. National Council on Alcoholism and Drug Dependence. (2010). Drugs and Alcohol in the Workplace.
Last updated on November 29 2018
2018-11-29T10:08:47+00:00
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