Drug Using Employee? Better Conduct An Individualized Assessment Before You Fire!

It seems that a child development center in South Carolina just settled an EEOC disability lawsuit for $5,000 (and other remedies) for hiring someone to be an afterschool teacher who had informed them of his prior opiate addiction and participation in a MAT program (“supervised medication-assisted treatment”) for which he was legally prescribed the drug Suboxone as part of his treatment.

After hiring, he was fired 30 minutes into his first day on the job.

So what’s the beef?

The Americans With Disabilities Act (“ADA”) prevents discrimination against people with disabilities, and creates an affirmative duty on employers; as the EEOC said in this case, the employer had to “conduct an individualized assessment prior to terminating [him]. The assessment would have helped determine what effect, if any, the Suboxone had on [his] ability to perform his job duties.”

The employer allegedly failed to conduct such an individualized assessment, and presumably had no idea if he could perform his job duties.

So it was sued and settled.


So, what are the important takeaways?

First, one size does not fit all.  Employers must not have a blanket policy on drugs and must assess each individual separately.

Second, $5,000 might not sound like a lot to settle a lawsuit – but a consent decree ordered by the Court can be quite onerous – and subject an employer to EEOC scrutiny for a long time. In this case the decree will last five years, and requires the employer to:

(1) amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully-prescribed manner;

(2) create an ADA-compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug, or illegal substance rehabilitation program in order to determine whether the individual can safely perform the essential functions of her/his position with or without reasonable accommodation;

(3) provide annual training on the requirements of the ADA and its prohibition against discrimination and retaliation in the workplace;

(4) report to the EEOC the identities of all applicants who were denied employment and employees who were terminated due to current or past alcohol, drug, or substance use.

As an EEOC attorney noted: “Employers should make employment decisions based on an applicant’s qualifications and an employee’s performance, not based on disability or participation in a medically-assisted treatment program.”


FisherBroyles has a team of highly experienced employment and labor lawyers who can help you develop or refine your ADA policies and procedures and advise senior management so that you’re prepared to properly address any ADA questions that may arise.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]