WHEN EMPLOYMENT HINGES ON A DRUG TEST

Disabilities Law May Protect Some Recovering Users

Q -- I know most Americans claim to have a zero-tolerance policy
regarding drugs. In college, I heavily experimented with alcohol and
marijuana. Later on, I tried psychedelics, cocaine and prescription
narcotics. My use after college was sporadic enough that I easily
passed several pre-employment urine drug screens. In the past year, my
husband and I decided we needed to quit completely. It's not easy, and
two times this year we both smoked pot, and he did cocaine once.

My husband applied for a new job in which he knew he would be drug
tested. He is perfect for the job and after five interviews was
offered it, contingent on passing a background check and drug test.
When he showed up at the clinic for his drug test, they took a hair
sample. I have read that the test is supposed to measure only the
inch-and-a-half closest to the scalp. That sample would most likely
test negative for drug use, but I don't feel secure that they won't
test the entire sample. I have also read that the hair analysis can
detect the level of drug use, which would be in his favor unless they
have a zero-tolerance policy.

We haven't heard from the employer since the test. One of the clinics
we called suggested my husband call the company, be honest, and
explain that he might not pass but that he is not a habitual user. I
have read that the Americans with Disabilities Act prohibits employers
from discriminating against recovering addicts, but is my husband
considered a recovering addict if his use isn't enough to get into a
rehab program?

A -- I am not here to pass judgment on those who use recreational drugs.
But I can confirm that job searches and work life are made more
complicated by recreational drug use.

According to a 2001 report prepared by the Schneider Institutes for
Health Policy for the Robert Wood Johnson Foundation, substance abuse
costs the U.S. economy $414 billion annually.

If your husband is asked a direct question regarding drug use on an
employment application or in an interview, he should be honest. If he
is not, and his drug use is detected in a routine test, his offer of
employment will probably be rescinded on the basis of the false
statements made in his application. However, I disagree with the
advice you got from the clinic. I do not recommend that he volunteer
information regarding his drug use unless asked.

If it comes to that, the Americans with Disabilities Act might protect
your husband from job discrimination based upon a history of drug
addiction. Generally, the ADA protects people from discrimination when
they have a current physical or mental impairment that substantially
limits one or more major life activity, when they have a record of
such an impairment, or when they are regarded as having such an impairment.

Drug addiction is an impairment under the ADA, but the use of drugs
without addiction is not. Individuals who are in recovery from drug
addiction, who have a history of drug addiction or who are regarded as
having such an impairment are protected. However, people who are
currently engaging in illegal drug use and people whose past substance
abuse did not and does not limit a major life activity are not protected.

In your husband's case, whether he would fall under the protections of
the ADA, therefore, would depend upon whether he can claim to be in
recovery from drug addiction, have a history of drug addiction, or be
regarded by his prospective employer as either having a history of
drug addiction or being in recovery. He would also need to show that
his past abuse is or was sufficiently limiting to him in one or more
major life activity, and that he is not currently using. The outcome
will largely be dictated by whether the test results indicate illegal
drug use that is recent enough that the employer could reasonably
believe your husband is a current user.

It is astute of you to note that the fact that your husband has been
unable to get a treatment program to accept him will make it harder
for him to argue that he is an addict in recovery. That might also
make it hard for him to argue that the impact of his past drug use was
severe enough to qualify him for ADA protection. However, your
husband's would-be employer might give him the benefit of the doubt if
the drug use appears to be several months in the past.