Published
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).
I applaud anyone who is willing and able to take on the healthcare system that shorts nurses in recovery. Unfortunately discrimination of this sort is very difficult to prove- short of them saying "you are not hired because of your drug abuse history".
This is one of those hot button issues that we all understand. There is truly nothing wrong with having posted this topic. It is wise to be informed about the laws that may aid us in this journey. I know for myself it's one that I can't get frustrated with or focused on lest I lose sight of my path. This addict gets too easily side tracked by seemingly unfair policies :).
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??
Problem with that is, even if a person has been genuinely discriminated against, the company/organisation is never going to come out and say "we didnt hire you because of X reason" it would open them up to all manner of legal actions
If an employer has the choice of two similarly qualified nurses, one of which has a documented substance abuse history. Chances are they will take the one without the substance abuse history. Sucks however employers want employees who can get on and do the job without having to worry aboutTo 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.
Prior to hiring an attorney, take a long hard self inventory and look at whether there is anything else you can do to improve your job prospects
Excessive legal action can also hurt your job prospects. A standard application question we have here is asking about whether we have ever raised a personal grievance against an employer. No one is going to want to employ a nurse if there is a strong possibilty they may end up facing legal action
Esme12, ASN, BSN, RN
20,908 Posts
I think you might find this article informative. http://www.nursinglaw.com/asthma.pdf