WASHINGTON STATE HUMAN RIGHTS COMMISSION
GUIDE TO DISABILITY and WASHINGTON STATE
NONDISCRIMINATION LAWS
Disability Law and Addictions
OLYMPIA HEADQUARTERS OFFICE
711 S. Capitol Way, Suite 402
PO Box 42490
Olympia, WA 98504-2490
TEL: 360-753-6770 - FAX: 360-586-2282
Toll Free: 1-800-233-3247
TTY: 1-800-300-7525
Se Habla Español
www.hum.wa.gov
Laura Lindstrand
Washington State Human Rights Commission
Addictions
Page 2 of 6
Updated in 7/2014
2
Disability Law and Addictions:
Questions and Answers for Employers Dealing with Addiction
Issues in the Workplace
Q: Is drug or alcohol use considered a disability?
A: Drug and alcohol addiction is considered to be a disability. Casual drug users or
“social drinkers” are not considered to be disabled.
Q: Who is protected under the law?
A: Individuals who are in a drug or alcohol recovery program, or who have been
through a drug or alcohol recovery program and are not currently using illegal drugs, are
protected under the Washington Law Against Discrimination (RCW 49.60).
Q: Are current users of drugs or alcohol protected under the law?
A: Current users of illegal drugs are not protected under the law. However,
alcoholics who currently drink alcohol are generally considered to be protected under the
law. Alcoholics or drug users who commit crimes due to intoxication (drunk driving,
disorderly conduct, providing alcohol to minors, etc.), who create unsafe working
conditions, or who violate workplace rules are not protected from discipline – it is the
behavior that creates the consequences.
Q: What is considered to be use of an illegal drug?
A: This is the use of any illegal drugs, as well as illegal use of prescription drugs (i.e.
taking medication that is prescribed to someone else, taking medication that your doctor
has not prescribed to you, or using over the amount of medication that has been
prescribed.)
Q: How do I determine if someone is a “current user” of an illegal drug?
A: The Equal Employment Opportunity Commission defines this to mean that the
use of an illegal drug occurred recently enough to justify the employer’s reasonable belief
that drug use is an ongoing problem. Generally, periodic use during the weeks and
months prior to the determination is enough. However, there is no set time limit to define
current use.
Q: What questions can I ask during a job interview or on an application about drug
and alcohol use?
Laura Lindstrand
Washington State Human Rights Commission
Addictions
Page 3 of 6
Updated in 7/2014
3
A: You may ask if an applicant drinks alcohol, and if he or she is currently using
drugs.
Q: What questions should I avoid asking during a job interview or on an application?
A: Do not ask if the applicant is a drug addict or an alcoholic, because this elicits
information about the applicant’s potential disability. Do not ask if the applicant has ever
been in a drug or alcohol rehabilitation program.
Q: Do I need to provide reasonable accommodations for drug addicts and alcoholics?
A: As with any other disability, an employer must engage in an interactive process
with drug addicts or alcoholics when the employee requests a reasonable accommodation.
It is not necessary to make illegal drug use or drinking alcohol in the workplace
acceptable. An employer does not need to tolerate criminal or unsafe behavior, or allow
the violation of workplace rules. (For example, if a forklift operator crashes the forklift
due to intoxication, the employer can discipline or terminate the employee. If a person
loses use of a regular driver’s license due to a drunk driving conviction, and driving is a
job duty, the employer does not need to “reasonably accommodate” a criminal conviction
by finding the employee a non-driving job.)
Q: What reasonable accommodations do I need to provide?
A: Usually, a leave of absence to get treatment, and time off to attend counseling or
meetings. Chronic absenteeism or tardiness does not need to be tolerated, unless in
connection to treatment. Again, an employer is not required to “accommodate” unsafe or
criminal behavior by not taking action against an employee who engages in such
behavior.
Q: What if an employee engages in workplace misconduct, but the misconduct is a
result of the drug or alcohol addiction?
A: Violations of workplace rules due to substance abuse do not have to be tolerated
by an employer. An employer should be prepared to show that the policy or rule that the
employee violated was job-related and consistent with business necessity. If the rule or
policy is job-related and consistent with business necessity, then an employer is under no
obligation to allow an employee to engage in misconduct in violation of policy, even if
the misconduct is caused by an addiction. Be sure to apply conduct rules and policies
consistently to every employee. In addition, remember that current users of illegal drugs
are not protected under the law.
Q: Can an employee avoid discipline by enrolling in a rehabilitation program?
A: If the employee violated a rule or policy that was job-related and consistent with
business necessity, and if the rule or policy was applied consistently to everyone, then an
Laura Lindstrand
Washington State Human Rights Commission
Addictions
Page 4 of 6
Updated in 7/2014
4
employee cannot avoid discipline by enrolling in a treatment program after the fact. If an
employer disciplines or terminates an employee for behavior or conduct, and then the
employee claims to be an addict and requests treatment, the employee is not protected. If
the employee is a drug user, requests reasonable accommodation in the form of time off
for treatment, returns to work, and then is still using illegal drugs, that employee is not
protected. If an alcoholic requests reasonable accommodation in the form of time off for
treatment, returns to work, and then violates a workplace rule by showing up to work
under the influence, the employer should consider putting the employee on a last chance
agreement, and giving the employee the opportunity to go back to treatment.
However, if an employee violates a workplace rule or policy, and prior to
discipline or other action by the employer, discloses an addiction and asks for a
reasonable accommodation of time off to go to a treatment program, then the employer
must reasonably accommodation the employee, and cannot discipline the employee after
the employee discloses the disability and asks for reasonable accommodation.
Q: What policies regarding drug and alcohol use can I put into place?
A: You can have policies that prohibit the use of illegal drugs and alcohol at the
workplace, prohibit employees from being under the influence of illegal drugs or alcohol
during work hours or while on-call, and prohibit employees from being under the
influence of legal drugs that would impair performance or risk safety. You do not have
to employ current users of illegal substances.
Employees who take legal prescription drugs that could impact their work may
need to be provided with a reasonable accommodation. For certain types of jobs, there
may be state or federal regulations that require drug testing. Following accidents, for
certain types of jobs, such as those in the transportation field, post-incident drug testing is
required.
Even though recreational marijuana use may be legal in Washington, it is still
illegal under federal law, and employers can decide to prohibit employees from using
marijuana or to not hire persons who test positive for marijuana use.
Q: If I suspect an employee of drug use or alcohol abuse, can I ask if they use drugs
or abuse alcohol?
A: This can be risky to do, because you may then be placing yourself in the situation
of “regarding” the employee as disabled, which could place the employee in a protected
category. If you decide to confront the employee, do so only if you have documented,
objective, and verifiable proof of the drug use. No civil rights law requires you to
tolerate or ignore or avoid reporting illegal drug use or driving under the influence of
alcohol to law enforcement authorities.
Q: What do I do if an employee comes to me with a drug or alcohol issue?
A: Do not immediately assume that the employee is an addict, and do not refer to the
employee as disabled. Gather more facts, thank the employee for being open and honest,
Laura Lindstrand
Washington State Human Rights Commission
Addictions
Page 5 of 6
Updated in 7/2014
5
and ask what the employee is requesting from you. If the employee requests reasonable
accommodation, begin the interactive process with the employee.
Q: What questions can I ask the employee about treatment and what medical
documentation can I request?
A; You may ask for medical information from the employee’s medical provider
verifying that the employee has a disability that requires time off to attend treatment,
counseling, or meetings. You can verify the dates and length of the treatment. You may
also ask for verification from the medical provider that the employee is ready to return to
work.
Q: What do I do if an employee uses medication for his or her disability?
A: Some medications have side-effects that may cause drowsiness or impair job
performance. Employers should try to accommodate these conditions. However, the
employer can prohibit the employee from performing certain job functions for safety
purposes. These may include use of machinery and driving. An employee must be able
to perform the essential functions of the job with or without reasonable accommodation.
An employee in this situation may need a re-assignment to another job or medical leave.
Q: What do I do if an employee needs to self-administer legal prescription drugs in
the workplace?
A: The employer should accommodate these needs. An example of such an
accommodation would be to allow the employee to have his or her break time at the same
time that he or she needs to self-administer the medication, and providing the employee
with a private place to do so.
Q: What if I have an employee or applicant who fails a random drug test, and then
shows me that they have a medical marijuana card?
A: In Roe v. Teletech, 171 Wash.2d 736 (2011), the Washington State Supreme
Court held that the Washington State Medical Use of Marijuana Act does not regulate the
conduct of a private employer or protect an employee from being discharged because of
authorized medical marijuana use. An employer can still enforce its drug use policy
against the user of medical marijuana. Marijuana is still an illegal substance under
federal law.
If you need additional information, have additional questions, or wish to have
training for your organization, please contact the WSHRC at 360-753-6770 or
800-233-3247 (TTY 800-300-7525). Additional information on this and other civil
rights issues can be found on our website at www.hum.wa.gov. This document
does not constitute legal advice; if you have a particular situation about which
you need legal advice, you should contact your attorney.
Laura Lindstrand
Washington State Human Rights Commission
Addictions
Page 6 of 6
Updated in 7/2014
6
