Jobs, Recovery and the ADA

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The Rehabilitation Act of 1979 and The Americans with Disabilities Act of 1990 are

Federal Regulations which prohibit discrimination in the workplace against individuals who are in recovery from alcohol or drugs. Discrimination is prohibited in all phases of employment including the interview, hiring, active employment and termination. Of course there are some basic rules, definitions and qualifications which determine whether an individual is protected by these laws. First, one must be a ‘covered entity', that is, one must meet the definition of ‘disability' afforded protection, and the employer must be shown to have acted in a manner which was discriminatory and absent any other allowed defense. The burden of proof is on the individual claiming discrimination, but circumstantial evidence is allowed and frequently carries the day. Each state also has anti-discrimination laws applicable to employment that equal or exceed the Federal laws. No state may enact a law which provides less protection.

Under the ADA "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. 12210(a).

All claims of discrimination must be filed with The U.S. Equal Employment Opportunity

Commission (EEOC). Your local office can be found at EEOC Home Page. The EEOC will

investigate your claim and, if they determine discrimination is taking place will even file a lawsuit, assist with mediation, or you may file a lawsuit yourself. The remedy ranges from being employed in the position to damages up to $300,000. Payment of lost salary and punitive damages are allowed. FILING A COMPLAINT WITH THE EEOC, THE INVESTIGATION AND ANY MEDIATION OR LAWSUIT ARE FREE OF CHARGE!

To recover under the ADA, the plaintiff must prove "(1) that he has a disability; (2) that

he is otherwise qualified for the employment... in question; and (3) that he was excluded from the employment...due to discrimination solely on the basis of the disability." Doe v. Univ. of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); accord Mauro v. Borgess Medical Ctr., 886 F. Supp. 1349, 1352 (W.D. Mich. 1995).

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Specializes in NICU.

Is there a reason that you are giving us a lesson on ADA? What is your point?

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From the OP's recent posts they believe they have been reported to their BON for diversion. I'm guessing this post is linking drug addiction to a disability and if a place doesn't hire you (and you think it's because of your history) you can sue them. Why else post it here??

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Yes, this is the law, however most places are protected from suites because all they have to say is that the supervised requirement and narc restrictions were unable to be accommodated for. Just being a realist :)

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I just left the info because I have read many nurses are having difficulty finding employment. I did not know if this would assist.

My state does not always place narc restriction and does not require workplace monitor at this time, but requires a case manager, 12 step, treatment and random UDS. It tries to be somewhat non-punitive.

If the state does require a workplace monitor and narc restriction that is protected under ADA accommodations. Not being hired when you are otherwise qualified because of recovery is illegal if you meet the requirements. Unfortunately, we just do not enforce it.

Just hoping it might help somebody! I will be happy to delete it though if it is unhelpful

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Just being "qualified" for a job is no guarantee that you're going to get it. Nobody has any guarantee of a job, including people protected under the ADA. There are all kinds of jobs I was qualified for but haven't gotten over the years because the employer had another candidate who was better qualified, or was preferred for some other reason. Savvy employers can always find ways to hire the people they want and not hire the people they don't want while remaining (at least appearing to) within the limits of federal and state employment law. I would think it would be extremely difficult to convince a court that one was discriminated against solely because of one's recovery status.

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Okay, I'll let the attorney who wrote this who is also an APN your thoughts.

I definitely regret posting! Carry on.....

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Specializes in Critical Care, ED, Cath lab, CTPAC,Trauma.
Okay, I'll let the attorney who wrote this who is also an APN your thoughts.

I definitely regret posting! Carry on.....

While it is written in the disability act.....it does not mean it applies specifically to nursing. The employer is required accommodations that are not an "undue hardship" to the employer and the workforce. Or that you would be a "significant safety risk" to employees or patients.

You will be surprised how little the ADA actually protects you.

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Specializes in Pediatrics, Emergency, Trauma.
While it is written in the disability act.....it does not mean it applies specifically to nursing. The employer is required accommodations that are not an "undue hardship" to the employer and the workforce. Or that you would be a "significant safety risk" to employees or patients.

You will be surprised how little the ADA actually protects you.

This.

Even if you have a disability, physical, mental or both, you can still be deemed a "safety risk" if one cannot perform the functions of the job; that would extend to anyone who has an addiction as well.

Put it into perspective; if one is struggling with an addiction and has a risk of being impaired while working, especially in healthcare, the employer can deemed said person as a "safety risk," thus absolving the employer for ADA rules.

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To the last poster, let me share what the lawyer said regarding that "That is ********". Just because you previously had a substance abuse issue does not mean you will relapse. If nurses go to treatment and are in a monitoring program the research shows a very high percentage of people do not relapse. They can not deny because of a 'might be' situation. Cases have preceded that confirm.

Sooooo, get a job or don't get a job. My head will hit the pillow and sleep at night regardless.

I would encourage people to speak to an attorney who is well briefed in this versus sharing what you think or have been told by the hospital. It's no wonder some hospitals get away with discrimination based on the responses here....Sad state

Get an attorney. It only protects if you actually use it.

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Specializes in Pediatrics, Emergency, Trauma.
To the last poster, let me share what the lawyer said regarding that "That is ********". Just because you previously had a substance abuse issue does not mean you will relapse. If nurses go to treatment and are in a monitoring program the research shows a very high percentage of people do not relapse. They can not deny because of a 'might be' situation. Cases have preceded that confirm.

if you are talking about me, please use the quote function.

I am speaking about what employers do, and will continue to do; I am a disabled nurse that has been let go because of my disability, and my employers unwillingness to see past my disability; what we are speaking about is what employers can claim, and most people don't have a leg to stand on.

If some is struggling with addiction-NOT someone who is clean; someone who is ACTIVELY still struggling, they-meaning employers WILL NOT-and I do mean NOT be held liable to adhere to those rules, especially in health care, as long as they can claim that it would pose a safety risk-employers have, can and will use it. That's the reality. :blink:

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Specializes in Critical Care, ED, Cath lab, CTPAC,Trauma.
To the last poster, let me share what the lawyer said regarding that "That is ********". Just because you previously had a substance abuse issue does not mean you will relapse. If nurses go to treatment and are in a monitoring program the research shows a very high percentage of people do not relapse. They can not deny because of a 'might be' situation. Cases have preceded that confirm.

Sooooo, get a job or don't get a job. My head will hit the pillow and sleep at night regardless.

I would encourage people to speak to an attorney who is well briefed in this versus sharing what you think or have been told by the hospital. It's no wonder some hospitals get away with discrimination based on the responses here....Sad state

Get an attorney. It only protects if you actually use it.

Just to set the record straight....I am a disabled nurse. I have MS and another rare muscle disorder that affects my ability to walk. The amount of steroids and immune-supressive drugs that I take makes me at high risk for any infection.

I hid my disability for YEARS. Yes I lied to employers for I KNEW if they knew I had a progressive auto-immune disorder my behind would be out the door. Eventually my disability became all too apparent by having to use a cane and eventually having to use a scooter or electric chair to wlk any distance.

My education position was downsized when I asked for reasonable accommodation. At another position (supervision) They were going to switch my shift to days....which interfered with my n infusion schedule and I asked for accommodation to keep my 7P night shifts....I got a severance notice that the position was being downsized again ....only to be reinstated 6 months later.

I filed with the EEOC and got a lawyer. 1) my severance would be revoked (it was a sizable sum) and if I took the severance I could not sue...all negotiated with a lawyer...yup they bought me out.

Then my disability could not be denied. I tried for 3 YEARS to get a job...any job. Guess what? I could not even get a telephone triage job even though I had 30 years experience as a nurse and in the ER to boot.....they sought another more qualified candidate or I was over qualified.

DO NOT ASSUME why I was passing on my experiences with the ADA. Mine has not been a positive one. DO you even realize that just because a business displays the handicapped emblem doesn't mean they are wheelchair accessible? Have you tried to navigate the store isles in JC Penny in a wheelchair? How about those little convenience stores? Ever try one of those isles?

There are many excuses that facilities can make that are completely legitimate to keep me out.

Your situation is different and I realize that....however, hospitals are very good and lying.....I am sure your lawyer is familiar with the ADA

An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship).

[h=3]Enforcement Guidance on Reasonable Accommodation [/h]

If you notice it says.....equal opportunity to PATICIPATE and be CONSIDERED....no where in the ADA does it state they are obligated to hire.

I hope your experience is different from mine.

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