Ask About: The ADA on Age and Addiction

Does the Americans with Disabilities Act cover people with disabilities of all ages? How does the ADA protect people recovering from drug addiction? Does the ADA protect ongoing drug use? This edition of Ask About the ADA features the last segment of the Northeast ADA's "What's the Question?" webinar and covers questions about age and the ADA, as well as protections for people recovering from addiction.

NortheastADA.org

Transcript

JOE ZESSKI: Hello, welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it impacts your everyday life. 

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On this edition of the podcast, we're going to go back to a webinar that the Northeast ADA presented on December 6, 2021. The webinar was called What's the Question? And basically, it was a webinar that went over some of the commonly asked questions received by the Northeast ADA'S Technical Assistance Team. The Technical Assistance Team answers questions from the public about the ADA and how it impacts them and their communities. 

The two question and answers that you'll hear today deal with coverage and enforcement of the ADA and also illegal drug use under the ADA. The first voice you'll hear is my own, Joe Zesski, the program manager here at the Northeast ADA Center. And the second question you will hear answered by Christopher Sweet, who is our Technical Assistance and Outreach Specialist here at the Center. 

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Let's go to our next question. And this one asks-- again, this is submitted by someone through our social media-- does the current ADA law and standards need to be updated to service all adults and children with disabilities? Can the ADA work within the states to enforce its standards within businesses on a state level? And first of all, the ADA covers adults and children. It's not limited by age, is a first thing to keep in mind. 

What it is restricted by is a person meeting the definition of disability. So if an individual meets that definition-- which we won't get into here, but it's a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having such an impairment-- if a person meets that definition, then they're likely going to be covered. So it'd be difficult to expand the coverage further of the ADA in terms of adults and children with disabilities. 

Also, the ADA doesn't apply to every circumstance. There are, well, a range of areas, but the three or four major areas are employment in the private sector or for state and local government, it also covers the services of state and local governments, and it provides also for access to public accommodations, which are private businesses and non-profits that are open to the public and affect commerce. Also, it does affect telecommunications. 

But those are the four large areas addressed by the ADA. So it doesn't apply to every circumstance. It doesn't apply to conflicts between two private individuals. It doesn't apply to most forms of housing, as you'll hear more about it later on in the webinar. It doesn't apply to a federal employer. So there are limitations to what the law covers, but those situations are typically addressed by other laws. 

In terms of enforcement on the state level, the ADA does apply to all states and territories within the United States. So whether you are in New York, New Jersey, or Puerto Rico, or the Virgin Islands, to give our region as an example, you are covered by the law. It is a federal law valid in all areas. It isn't proactively enforced, rather, it's more enforced by people filing complaints, by filing complaints with the Equal Employment Opportunity Commission, or the Department of Justice, or the Department of Transportation. 

So be aware, it is enforced through that way. There may be some reciprocal relationships in some state and territories where the state or territory division of civil rights works with the Department of Justice, for example, or the Equal Employment Opportunity Commission. And in those cases, there's communication between the federal and state level. But again, the enforcement is really driven by people filing complaints. It's not a proactive process that's set up in the law. 

And now, let's go to Chris to ask a question about illegal drug use under the ADA. 

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CHRISTOPHER SWEET: We'll move on to the next question. And this is a question that, oddly enough, I've fielded quite a few times this year. And it is around illegal drug use and Title I, so employment. And the question is, if I failed a drug test at my place of employment, but then immediately quit taking them and went into treatment, can my employer fire me? 

So the ADA provides that any employee or job applicant who is currently engaging in the use of illegal drugs does not qualify as an individual with a disability. Therefore, an employee who illegally uses drugs, whether the employee is a casual user or an addict, is not protected by the ADA if the employer acts on the basis of the illegal drug use. As a result, an employer does not violate the ADA by uniformly enforcing its rules prohibiting employees that illegally use drugs. 

However, qualified individuals under the ADA include such individuals as people who have successfully rehabilitated and are no longer engaged in the use of illegal drugs, who are currently participating in a rehabilitation program and are no longer engaging in the use of illegal drugs, or somebody who are regarded erroneously as illegally using drugs. So the Equal Employment Opportunity Commission has defined current to mean that the illegal drug use occurred recently enough to justify the employer's reasonable belief that drug use is an ongoing problem. 

And so the EEOC Technical Assistance Manual on the ADA offers this guidance. "If an individual tests positive on a drug test, he or she will be considered a current drug user so long as that test is accurate. And current drug use is the illegal use of drugs that has occurred recently enough to justify the employer's reasonable belief that involvement with drugs is an ongoing problem." Current is not limited to the day of use, or recent weeks or days, but really needs to be looked at on a case-by-case basis. 

A question sometimes arises as to whether a drug addicted employee who breaks the company rules can, before being disciplined, enroll in a supervised drug rehabilitation program and then claim ADA protection as a former drug addict who no longer illegally uses drugs. But the guidance on that is that, "Such claims made by an applicant or employee will not be successful." An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehab program and seek to avoid the possibility of discipline or termination by claiming that they are now in rehabilitation because they're no longer using drugs illegally. 

So a person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been, or are in rehabilitation. So a good example of that is an individual starts a job or is an applicant for a job, and there maybe knowledge that they've had issues in the past but they're now sober, just a variety of interactions that could be happening. Those people are protected under the ADA. 

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JOE ZESSKI: Well, I hope you found it interesting today, and these questions and answers were useful for you. If you want to learn more about what we covered in the webinar, feel free to visit the Northeast ADA website, northeastada.org. And of course, as always, feel free to reach out to us with any questions that you want to hear answered here on the podcast. You can email us at NortheastADA@cornell.edu. 

You can look for us on social media, just search for @northeastADA on Twitter, Facebook, Instagram, and LinkedIn. We'll be glad to get back to you. And of course, as always, if you live within the New York, New Jersey, Puerto Rico, or US Virgin Island region, you can contact us by telephone at 1-800-949-4232. 

Let me thank Grace Fairchild, our producer for the podcast and editor. Also, I'd like to thank Peter Quinn of the Yang-Tan Institute Media Team, who also does editing on our podcasts. And of course, as always, thank you for listening and joining us and being a part of the conversation. 

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