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Clinicians and researchers commonly divide drug and alcohol consumption into three levels or stages of use: use, abuse, and dependence. While the use of drugs and alcohol does not generally rise to the level of an impairment that constitutes a disability, abuse and dependence do. Drug and alcohol abuse is characterized by intensified, regular, sporadically heavy, or "binge" use, and dependence is characterized by compulsive or addictive use.

Drug and alcohol abuse and dependence are classified as treatable illnesses by both standard diagnostic medical manuals, the Diagnostic and Statistical Manual IV (DSM-IV) and the International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD-10). These manuals also provide criteria for diagnosing drug and alcohol abuse and dependence that focus on psychological, behavioral, and cognitive symptoms. The impact of drug and alcohol use on social and occupational functioning is an important factor in evaluating the severity of an individualœs condition. (1) Many individuals with drug and alcohol problems can continue to function in their jobs long after drug and alcohol use has begun to take its toll on family and social functioning.

Many employers do not realize that the Americans with Disabilities Act (ADA) protects individuals with drug and alcohol problems against discrimination in employment. This confusion exists because the ADA imposes some special requirements for the employment of individuals with current drug problems.

People with past drug or alcohol problems are protected from job discrimination by the ADA, as are persons with current alcohol problems who are able to perform their job. The only individuals with drug and alcohol problems who do not have the same rights as others with disabilities are those who currently use drugs illegally.

The ADA specifically excludes from the definitions of "individual with a disability" any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. This includes individuals who use illicit drugs as well as those who use prescription medications unlawfully. Individuals who use drugs under the supervision of a licensed health care professional -- such as methadone -- are not using drugs illegally, and therefore could be protected against discrimination.

Although individuals with current drug problems are not protected, the ADA specifically protects individuals who are participating in a supervised drug rehabilitation program or who have completed a treatment program or have been rehabilitated through self-help groups, employee assistance programs or any other type of rehabilitation, and are no longer using drugs.

In addition, the ADA protects individuals who are erroneously perceived as abusing drugs illegally, but are not doing so. Because of societal attitudes about drug abuse, many individuals who have had drug problems in the past are perceived as still being drug dependent. Similarly, individuals who participate in methadone maintenance programs are also often perceived as drug dependent, even though methadone is a lawfully prescribed medication and individuals who participate in a methadone maintenance program are able to do every task -- even safety- related tasks -- that a person who is not receiving such treatment can do. These individuals are protected against discrimination under the ADA.

Workplace drug testing programs also create a pool of individuals who may be erroneously perceived as being drug dependent when, in fact, they are not. Invariably, drug tests will inaccurately identify some individuals as drug users. This occurs because the drug test may be performed incorrectly, substances in an individualœs system may be incorrectly identified as a drug, or a prescription medication may be incorrectly identified as an illicit drug. The ADA prohibits discrimination against individuals who are erroneously regarded as engaging in the illegal use of drugs because of a false positive drug test, but are not engaging in such use.

Individuals with current alcohol impairments are protected against discrimination like any other individual with a disability. Alcohol is not considered a "drug" under the ADA, and, therefore, the current abuse of alcohol does not exclude an individual from the ADAœs protection. Individuals with current alcohol impairments, like any other individual with a current disability, must be able to perform the essential functions of the job to be protected against discrimination. In addition, the ADA specifically permits an employer to hold employees who abuse alcohol to the same performance and conduct standards applicable to all employees, even if that employee's problems are related to the alcohol abuse.

To determine whether an employee or job applicant is "currently" using drugs illegally, an employer must make an individualized determination that focuses on whether the individual has used drugs close enough to the time of the employment action to indicate that there is a real and on-going problem. It is not permissible to impose a blanket time limitation, such as 30 or 60 days of abstinence from drugs, as a way to define what is "current" illegal use of drugs. In addition, because the ADA protects individuals who are participating in a rehabilitation program and those who have been rehabilitated (as long as they are not still using drugs illegally), employers should be careful about reaching back in time and taking adverse actions against individuals for drug use that occurred before they entered treatment.

1. Institute of Medicine, Treating Drug Problems, 61-62, 69-72 (1990).

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