By Lily Garcia
Special to washingtonpost.com
Thursday, July 3, 2008 12:00 AM
I know that most Americans claim to have a zero-tolerance policy regarding drugs. I'm sure there are a large number of people that have never tried any kind of drug. I am not one of those people. In college, I heavily experimented with alcohol and marijuana. Later on, I also tried psychedelics, cocaine and prescription narcotics. My use after college was sporadic enough that I easily passed several pre-employment urine drug screens without altering the sample. In the past year, after much soul-searching with my husband, we decided we needed to quit completely. It's not easy and there have been two times this year where we both smoked pot and once this year where he did cocaine. We wanted to attend counseling for substance abuse, but when we called the two programs in our area and discussed our problem, they both implied or directly said that our problem was too small for their programs, which treat heavy users or those facing criminal charges.
My husband applied for a new job in which he knew he would be drug tested. He is absolutely perfect for the job and after five interviews was offered the job, contingent on passing a background check and a drug test. We bought several at-home urine tests and he tested clean on every one of them. When he showed up at the clinic for his drug test, they took a hair sample instead. My husband has hair that is several inches long and will most certainly show his most recent drug use (on average hair grows 1/2 inch a month and his hair is more than three inches long). I have read that the test is only supposed to measure the inch-and-a-half closest to the scalp and that sample would most likely test negative for drug use, but I don't feel secure that they won't test the entire sample. I have also read that the hair analysis can detect level of use, which would be in his favor unless they have a zero-tolerance policy.
We haven't heard from the employer since the test (three days ago) and one of the clinics we called suggested my husband call the company, be honest, and explain that he might not pass but that he is not a habitual user (or even a "weekend warrior"). It was my impression that most employers who drug test do so for insurance reasons but I didn't know if those insurance companies had zero-tolerance policies. I also read that the American with Disabilities Act prohibits employers from discriminating against recovering addicts, but is my husband considered a recovering addict if his use isn't even enough to get into a rehab program?
I am not here to pass judgment on those who use recreational drugs. But I can amply confirm that job searching and work life is made more complicated, and in many ways more difficult, by recreational drug use. According to a 2001 report prepared by the Schneider Institute for Health Policy for the Robert Wood Johnson Foundation, the annual cost of substance abuse to the U.S. economy exceeds $414 billion. The same study reports that approximately one in four U.S. deaths each year is attributable to the use of alcohol, tobacco and illicit drugs. On an individual level, drug abuse not only threatens your health, but leads to long-term impairments in professional, emotional and social functioning, and could most obviously lead to your arrest and conviction. I therefore applaud you and your husband for making the decision to lead a drug-free life.
Meanwhile, if he is asked a direct question regarding drug use on an employment application or in an interview, your husband should be honest. If he is not, and his drug use is detected in a routine test, his offer of employment will probably be rescinded on the basis of the false statements made in his application. However, I disagree with the advice you got from the clinic. I do not recommend that he volunteer information regarding his drug use unless asked. He has nothing to lose if the drug use is not detected. If the drug use is detected, then he can offer an explanation.
If it comes to that, the Americans with Disabilities Act (ADA) might protect your husband from job discrimination based upon a history of drug addiction. Generally, the ADA protects people from discrimination when they have a current physical or mental impairment that substantially limits one or more major life activities, when they have a record of such an impairment, or when they are regarded as having such an impairment (even if they do not actually have it).
Drug addiction is an impairment under the ADA, but the use of drugs without addiction is not an impairment. Individuals who are in recovery from drug addiction, who have a history of drug addiction, or who are regarded as having such an impairment are protected by the ADA. However, people who are currently engaging in illegal drug use and people whose past substance abuse did not and does not limit a major life activity are not protected.
In your husband's case, whether he would enjoy the anti-discrimination protections of the ADA, therefore, would depend upon whether he can persuasively claim to be in recovery from drug addiction, have a history of drug addiction, or be regarded by his prospective employer as either having a history of drug addiction or being in recovery. He would also need to show that his past abuse is or was sufficiently limiting to him in one or more major life activities, and that he is not currently using. The final outcome will largely be dictated by whether the drug test results indicate illegal drug use that is recent enough that the employer could reasonably believe that your husband is a current user rather than someone in recovery.
It is astute of you to note that the fact that your husband has been unable to get a treatment program to accept him will make it harder for him to argue that he is an addict in recovery. That might also make it hard for him to argue that the impact of his past drug use was severe enough to qualify him for ADA protection. However, your husband's would-be employer might give him the benefit of the doubt if the drug use appears to be several months in the past. Also, the fact that his most recent use was relatively mild is actually a double-edged sword. It might exclude him from ADA protection, but it might also make the employer less hesitant about hiring him.
Regardless, it would both help your case and benefit your life if you and your husband could find the support that you need in your efforts to quit. If you have not done so already, you should explore Alcoholics Anonymous or Narcotics Anonymous. Such meetings have been recognized as recovery programs that would qualify a former addict for ADA protection. These groups are welcoming to people with substance abuse problems of all degrees of seriousness, and they enjoy widespread acceptance in the mental health community. In fact, many counseling programs often encourage participants to attend such meetings as a supplement to their work.
Join Lily Garcia on Tuesday, July 8 at 11 a.m. ET for How to Deal Live.
Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.