questionQ: Are employees who come to work under the influence of an illegal substance covered under the Americans with Disabilities Act (ADA)?

A: Under the ADA, employees who are currently engaged in illegal drug use are not considered qualified individuals with a disability. However, employees who are prescribed drugs to treat a condition are protected under the ADA. The exception is when they pose a direct threat to themselves or others.

When an obvious, immediate risk is present employers should act quickly to keep the workplace safe. However, ESC recommends that you do not immediately terminate the employee. Instead, send the employee for a “for cause” drug test.  This is permissible when impairment causes an immediate safety risk and there’s reasonable suspicion of drug use.

Ensure employees that may be impaired are not driving themselves — call them an Uber or a Taxi. If a similar situation arises at your worksite, call your HR Consultant  immediately for guidance and support.