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Programs
for Individuals With Disabilities (PIWD)
SETTING AN EXAMPLE! As part of a settlement agreement between the Department
of Justice and Friendly's Restaurants Nationwide, Friendly Ice Cream Corp has
agreed to make its over 700 restaurants accessible to individuals with disabilities.
This is the largest settlement DOJ has negotiated. (The accessibility standards
differ depending on when the restaurant opened) So next time you visit a Friendly's
and it looks like they are busy with a make over, give'm an "Atta Boy." They
are leading the way in a changing world.
ARE DRUG ABUSE & ALCOHOLISM COVERED DISABILITIES?
The
Rehabilitation Act (Act), as amended by the Americans with Disabilities
Act (ADA) no longer obligates an employer to accommodate an employee's
active drug addiction as a disability. The duty to accommodate
alcoholism has also diminished. Reasonable accommodation provisions
of the ADA "does not affirmatively require that
an [employer] must provide a rehabilitation program or an opportunity
for rehabilitation for any job applicant ... or any current employee
who is a drug addict or alcoholic against whom employment-related
actions are taken ... (Emphasis mine. Ref: Senate Report No 116,
101st Congress, 1st Session)
'Current use' is the key issue when defining protection under
the Law where alcohol or drugs are involved. Active users/abusers
are not covered under the law. There are minor differences depending
on which abuse you are dealing with.
DRUG USE
The ADA excludes from the definition
of individual with a disability one that is currently engaging
in the "illegal
use of drugs."* Illegal use of drugs is defined under both
Acts as: "the use of drugs, the possession or distribution
of which is unlawful under the Controlled Substances Act. ...Does
not include drugs taken under supervision of a licensed health
care professional or other uses authorized by the CSA or other
provisions of federal law."
*Note: ADA directly amends the Rehabilitation Act to make the
same exclusion
Interpretive guidance to ADA Regulations 1630.2 states that employers
may discharge or deny employment to persons who illegally use drugs,
on the basis of such use, without fear of being held liable for
discrimination.
ALCOHOL USE
An agency "may hold an employee who ... is an
alcoholic to the same qualification standards for employment or
job performance and behavior [to which the agency] holds other
employees, even if any unsatisfactory performance or behavior is
related to the ... alcoholism of such employee." It also states
that "... [An agency] may require that employees shall not
be under the influence of alcohol ... at the workplace." (Ref:
Ref: 42 USC 12114(c)(2) & (4).
WHAT ABOUT "FIRM CHOICE?"
Firm choice refers to the
offer of a rehabilitation program before action is taken to discipline/dismiss
an individual who is an alcohol or substance abuser. It is no longer
a requirement that employers offer a firm choice before disciplinary
action can be taken. The Act strongly encouraged employers offer
such rehabilitation programs or provide an opportunity for rehabilitation.
Critical to these cases is a determination that the employee was
discharged on the basis of misconduct and not on the basis of a
disabling condition. Critical to the processing of these cases
is a determination that the employee was discharged on the basis
of misconduct and not on the basis of a disabling condition.
ARE THERE EXCEPTIONS TO THE ABOVE RULES?
Yes. Individuals who:
1) successfully complete a supervised Rehabilitation Program & are
no longer using; 2) are participating in a supervised Rehabilitation
Program & no longer using; or 3)* are erroneously regarded
as engaging in use, but are not using, are protected under the
law.
*Note: Permits drug testing to ensure.
It is important to remember when processing any complaint of discrimination
- the law requires the Equal Employment Opportunity Commission
(EEOC) and the Courts to apply the same "standards" when
deciding cases governed by either statute. The standards used are
those of the ADA.
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