Addiction Considered Disability?

jackstem · Dec 4, 2010

The following quote is from an excellent article written by an attorney. It was published in the American Association of Nurse Anesthetist's (Blumenreich, GA: "Nurse anesthetists and the Americans with Disabilities Act", AANA Journal/February 2005/Vol. 73, No. 1).

Under the Americans with Disability Act, drug usage is a disability but it is in a very special class. Under the Act, a "qualified individual with a disability," the person who is protected by the Act, does not include anyone who is "currently engaging in the illegal use of drugs." Former drug addicts can, however, again become entitled to the protection of the Act if they successfully complete a supervised drug rehabilitation program or they are participating in a supervised drug rehabilitation program and they are no longer engaging in the illegal use of drugs. Employers may adopt reasonable policies or procedures, including drug testing, designed to ensure that employees are no longer engaging in the illegal use of drugs. Employers may prohibit the use of drugs or alcohol at the workplace.

The following question and answer is from the ADA.gov website online booklet (ADA Questions and Answers):

Q. What limitations does the ADA impose on medical examinations and inquiries about disability?

A. An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions.
An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.
However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a "direct threat" in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the oedirect threatî level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current oefitnessî to perform a particular job, and voluntary examinations that are part of employee health programs.
Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations.

Hope these help.

Jack

mavdreams · Dec 5, 2010

WOW, thank you! Very enlightening and helpful! Gives me more hope of a second chance! Thanks again

jackstem · Dec 5, 2010

WOW, thank you! Very enlightening and helpful! Gives me more hope of a second chance! Thanks again

You might want to consult a license defense attorney in your state. The American Association of Nurse Attorneys can provide referrals. GOOD LUCK!

Jack

chaddy12 · Jul 2, 2012

Hi, WOW !! when I just read your post I said "what..does this person know me" I pulled my husband away from what he was doing to read your post and his exact words " you just wrote that ?" I am in the exact, exact same postion. I am at 2 1/2 yrs of my 3 yrs probation and Im trying to get a job. Everytime I apply it is the same situation, are you on probation and when do you tell the (hopefully) future employeee and why ? Im having an incredible time getting a job, I cant even volenteer for that matter. EVERYONE does background checks. I please would appreciate any help, suggestions, directions regarding getting a job while on probation. Im clean 2 1/2 yrs with no desire EVER to mess up again !! Chaddy 12 :)

mona1023 · Jul 2, 2012

Chaddy12, you haven't worked in nursing in over 2years? You may want to consider doing some CUE's before you go before the BON in your state to have your probation lifted. The reason I say this is that some Boards might require in anyway if you haven't practiced in a while.

Secondly, my suggestion is just try different fields-not necessarily hospital nursing. Ambulatory Clinics,Dialysis, LTC, etc.

Congratulations on your recovery. No matter what happens, you have something to be proud of every day you are clean and sober.