Utah Bar Journal

Although the above examples are extreme, the cost of addiction for employers is high and may include lost productivity, absenteeism, and employer liability for actions performed with impaired judgment.

As of 2002, the Office of National Drug Control Policy estimated that drug abuse resulted in $128.6 billion in lost productivity. Further, employees who use drugs are 2.2 times more likely to request time off, 3 times more likely to be late for work, and 3.6 times more likely to be involved in a workplace accident. See Substance Abuse and Mental Health Services Administration, Drugs in the Workplace (2008), available at workplace.samhsa.gov/Workplaces/pdf/WorkplaceDrugUseFactSheet.pdf. About 500 million workdays are lost annually due to alcoholism, and alcoholism is linked to nearly 40% of industrial fatalities. See id.

While employers should not have to tolerate certain behavior, the law provides protections to employees who qualify as “disabled.” This begs the question of whether addictions are a type of disability recognized by the Americans with Disabilities Act (ADA) and/or a serious medical condition under the Family Medical Leave Act (FMLA) for which accommodation or leave is mandated. In some cases, the answer could be yes, and employers must understand what, if any, responsibility they have to accommodate or support recovering addicts.

A Widespread Problem

Likely, every employer has felt or will feel the detrimental effects of addiction on their business. Utah companies are no exception.

The National Survey on Drug Use and Health reported that in 2008, 22.2 million people aged twelve or older (8.9% of the population) were classified with substance dependence or abuse. See Substance Abuse and Mental Health Services Administration, Results from the 2008 National Survey on Drug Use and Health: National Findings (2009), available at http://www.oas.samhsa.gov/nsduh/2k8nsduh/2k8Results.pdf (reporting that substance dependence and abuse is 9.4% in the West – higher than any other region in the nation). Of that number, 15.2 million Americans were addicted to alcohol; 3.9 million were addicted to drugs; and 3.1 million were addicted to both. See id. Interestingly, 72.7% of illicit drug users and nearly 80% of binge drinkers are employed.

Researchers have begun to recognize Internet addiction, and specifically Internet pornography addiction, as a condition analogous to or worse than alcoholism or drug addiction – conditions that pose serious concerns for employers. See Donald L. Hilton Jr., MD, He Restoreth My Soul (2010) (describing the severe chemical changes to the brain as a result of pornography addiction); Blake R. Bertagna, The Internet – Disability or Distraction? An Analysis of Whether “Internet Addiction” Can Qualify as a Disability Under the Americans with Disabilities Act, 25 Hofstra Lab. & Emp. L.J. 419, 421-22, nn.12, 24 (2008) (citing to research legitimizing Internet addiction as a medical disorder). Last September, USA Today reported on the opening of the nation’s first residential treatment center for Internet addiction. See Nicholas K. Geranios, Internet addiction center opens in US, Sept. 3, 2009, available at http://www.usatoday.com/tech/news/2009-09-03-internet-addiction_N.htm.

Approximately 20% of men and 13% of women admit accessing pornography while at work. These figures, however, are probably much higher given that more than 28,000 Internet users view pornography each second and pornographic search engine requests account for more than 25% of daily Internet traffic. See Jerry Ropelato, Internet Pornography Statistics – Top Ten Reviews, available at http://internet-filter-review.toptenreviews.com/internet-pornography-statistics.html#anchor1.

Protections for Employees

The solution to the addiction problem may seem as easy as firing employees who display inappropriate addictive behavior. Even so, companies should be aware of the legal protections available to employees who struggle with addictions in order to comply with the law and avoid expensive lawsuits.

The ADA

The ADA prohibits companies employing more than fifteen people from discriminating against a qualified individual on the basis of that person’s disability. See 42 U.S.C. §§ 12111-12 (2000). An addiction only qualifies as a disability under the ADA if it physically or mentally impairs the employee and limits the employee in a major life activity. In such a case, an employer must make “reasonable accommodations to the known physical or mental limitations” of the individual. Id. § 12112(b)(5). But, an employer who does not know about a particular addiction has no duty to accommodate it.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Id. § 12102(1). Major life activities include, but are not limited to, the following: learning, working, sleeping, sitting, standing, performing manual tasks, walking, seeing, hearing, and speaking. See id. § 12102(2)(A). Neurological and brain functions now qualify as major life activities. See id. § 12102(2)(B). In any case, an addiction will only qualify as a disability under the ADA if it physically or mentally impairs the employee and the employee is limited in a major life activity.

Because new research indicates that addiction is an actual physical or mental impairment, the issue lies in whether the limitation limits a major life activity. Several factors are considered in determining if an individual is substantially limited in a major life activity; these factors include “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2) (2009).

The FMLA

The FMLA requires employers of fifty or more people to provide employees with up to twelve weeks of requested leave per year for a “serious health condition” preventing the employee from performing the functions of their job and insures employment benefits and reinstatement to the same or equivalent position. See 29 U.S.C. §§ 2612, 2614 (2000). A serious health condition is “an illness, injury, impairment, or physical or mental condition” involving inpatient care or continuing treatment by a health care provider, which could include substance abuse treatment or therapy. Id. § 2611(11).

Are Addictions Disabilities?

Drugs

The United States Supreme Court in Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), considered a disparate-treatment theory that the petitioner refused to rehire the respondent, a former drug addict, because the petitioner regarded the respondent as disabled and/or because of the respondent’s record of disability. A drug addict is only capable of achieving disability status if he or she is no longer using drugs and has been successfully rehabilitated or is participating in a supervised rehabilitation program. See 42 U.S.C. § 12114(b)(1)-(2); 29 C.F.R. § 1630.3(b)(1)-(2). Drug users are not protected from actions taken by their employer against them if the employee is “currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use.” 42 U.S.C. § 12114(a). For example, an employee addicted to narcotic pain medications could still be required to comply with a company policy prohibiting the operation of motor vehicles while under the influence of drugs, legal or illegal. See Quinney v. Swire Coca-Cola, USA, No. 2:07-cv-788-PMW, 2009 U.S. Dist. LEXIS 42098, at *609 (D. Utah May 18, 2009). In other words, the ADA protects a disability but not disability-caused misconduct. See generally Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998) (“[B]oth the ADA and the Rehabilitation Act clearly contemplate removing from statutory protection unsatisfactory conduct caused by alcoholism and illegal drug use.”).

Alcohol

Alcoholism can also be a disability under the ADA. See Renaud v. Wyo. Dep’t of Family Servs., 203 F.3d 723, 730 n.3 (10th Cir. 2000) (noting the concurrence of several federal circuits). ADA protection does not, however, extend to cover alcohol use on the job. See 42 U.S.C. § 12114(c) (2000) (providing employers can prohibit drug and alcohol use at the workplace and require that employees not be under the influence). To qualify as a disability, both drug addiction and alcoholism must substantially limit a major life activity. See Burris v. Novartis Animal Health U.S. Inc., 309 Fed. App’x 241, 250 (10th Cir. 2009) (applying the same analysis to alcoholism as used in the context of drug addiction and affirming summary judgment for employer on employee’s ADA claim).

Internet Pornography

The law is unclear whether Internet pornography addiction qualifies as a protected disability. A recent case out of New York involved an employee’s “long-standing internet addiction,” yet the ADA discrimination analysis focused on Post Traumatic Stress Disorder as the applicable disability, not the Internet addiction. See Pacenza v. IBM Corp., No. 04 Civ. 58311 (PGG), 2009 U.S. Dist. LEXIS 29778, 2009 WL 890060, at *10 (S.D.N.Y. Apr. 2, 2009). In any event, certain sexual behaviors that may be associated with an Internet addiction are excluded from the definition of disability under the ADA. The law exempts from the definition of disability “[t]ransvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” 29 C.F.R. § 1630.3(d)(1). Homosexuality and bisexuality are also not considered disabilities. See id. § 1630.3(e).

Employer Dos and Don’ts

While the legal ramifications of Internet pornography addiction are largely undefined, employers can look to current statements involving drug and alcohol addictions for guidance in creating workplace policies. Employers subject to the ADA are allowed to prohibit illegal drug use and alcohol use at the workplace and can require all employees to be free from the influence of such substances while on the job. See 42 U.S.C. § 12114(c)(1)-(2). Further, employers may also

hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

42 U.S.C. § 12114(c)(4).

In some cases, employers may be required to reasonably accommodate workers struggling with addictions.1 But there is no requirement that an employee be given an indefinite recovery period without termination. See id. § 12111(9). Possible ways to accommodate employees include flexibility in scheduling to allow for attendance at recovery programs, counseling, or 12-step meetings; leave for rehabilitation or medical treatment; or modified work assignments to reduce exposure to certain tasks or substances.

The following tips may also help law firms and business clients avoid unwanted consequences of addiction within their company:

• Establish and circulate company policies prohibiting illegal drug use, alcohol use, and the viewing of pornography in the workplace.

• Freely discipline, discharge, or deny employment to current drug users and alcoholics whose use of substances impairs their job performance or conduct.

• Do not hold addicts to a different performance standard than other employees, but be consistent in enforcement.

• Do not refuse to hire, promote, or reward employees with a history of addiction (who are not currently using their substance of choice) on the basis of their addiction.

Conclusion

Addictions, whether known or undetected, pose serious problems in the workplace and may threaten the bottom line of any business. In certain cases, the law has treated alcoholism and drug abuse as legitimate disabilities warranting special treatment. The age of the Internet has ushered in yet another addiction that appears to be physically and mentally on par with drug and alcohol abuse. While Utah businesses may be familiar with their legal rights when it comes to drug and alcohol abuse, the landscape of Internet pornography addiction is largely uncharted. Employers should carefully examine their policies and procedures to ensure compliance with federal law and prepare for new challenges under the ADA and FMLA.

1. See 42 U.S.C.A. § 12111(9) (2000) (“The term ‘reasonable accommodation’ may include – (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”).