March 6, 2008

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What You Didn't Know About the ADA
and Addicted Workers
(Don't miss the critical link to ASAM's policy at bottom of this page.)

If you believe that the ADA was a long overdue law to protect recovering alcoholics and drug addicts from discrimination, it’s safe to say that most would agree with you. But, to have a well-rounded understanding of the ADA and its impact on alcoholic and drug addicted workers, you should know that there is an opposite view, and some history that goes with it.

Not everyone is happy about the ADA and the (EEOC) interpretation of how the law applies to the workplace and the handling of alcoholic and drug addicted workers. One of the most upset groups of professionals is the American Society for Addiction Medicine (a very close ally of the EAP field). They believe that the ADA and the EEOC has turned back the clock on acceptance of alcoholism and drug addictions as legitimate illnesses. Just when  alcoholics were beginning to pour into treatment from the workplace, they believe the ADA shut the door.

In 1990, the ADA specifically excluded alcoholic and drug addicted workers from the requirement that they be offered an opportunity for treatment when job performance difficulties are a result of their illness (e.g. lateness, absenteeism).

A decision by the Federal Equal Employment Opportunity Commission (EEOC) in March 1996 ruled that Federal agencies are not required to offer an alcoholic employee a “firm choice” between treatment for alcoholism and termination, but may terminate the employee without any such consideration, even when the employment deficiency in question is known to be addiction-related. This determination was based on the ADA, but it unraveled a decade of  progress.

Here’s the point: Until 1996, many court rulings found the exact opposite. Based on laws governing the handicapped, and heavily influenced by the new push to get alcoholics into treatment, courts upheld that federal agencies must document that they used a firm choice mechanism to motivate the employee to make a decision to get help (treatment) when alcoholism was clearly the cause of performance problems. If a firm choice offer was not made available and the employee was fired, he or she could their job back. This is an amazing fact, and its impact on driving addicts into treatment was enormous.

Yesteryear's court rulings accepted the modern day view of addiction as a disease of denial so severe that a person with the illness could not be expected to simply self-diagnose it in the absence of being confronted by personal (performance) problems. Denial being part of the illness, it just wasn't going to happen. So accommodation meant confronting and giving the employee a chance to seek help. It then became the addicted person's responsibility to accept help or the consequences. This "formula" (in some form) is how virtually all alcoholics and drugs enter treatment.

The Federal Alcohol Abuse Act of 1970 ("the Hugh's Act") provided the impetus for this societal shift in attitude toward helping alcoholics and drug addicts. Courts ruled that “firm choice” must be incorporated in the disciplinary process when addiction was known to contribute to performance problems. To avoid job loss, alcoholics poured into treatment motivated by firm choice agreements. Many self-referred before being put into this position. How to properly offer a firm choice was the business of the Office of Personnel Management and their famous  "Federal Personnel Management (FPM)" letters. They offered model language to  any federal agency needing guidance.

Did you know that some of the best models for “firm choice” letters were formulated by Federal Office of Personnel Management? Did you know that today’s formal supervisory referrals to EAPs have shared history with this almost sure-fire intervention tactic? Firm choice is actually an accommodation for an addicted worker's health problem! (At least it used to be.) 

Anyone with long-term EAP experience will tell you that the firm choice requirement that recognized addiction as a disease of denial worked well, and drove alcoholics into treatment like crazy. Many of our fellow EA professionals are grateful recovering persons who are a testimony to this piece of addiction intervention history.

Now this may surprise you: Follow this link to the ASAM's Public Policy Statement on Fair Treatment of Alcoholic Persons Whose Job Performance is Impaired by Alcoholism and Other Drug Dependencies.

ASAM policy statement is important because EAPs are mentioned in the second line and distinctly relied upon to support its tenants. You may find yourself thinking in a different way about the rights of addicted workers after you read it.


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