Do Addicted Employees Have Too Many Rights?
The law says addiction is a "disability." Now a court ruling says even the risk of relapse is, too—and you may be able to get paid not to come to work. This could be damaging.
Relapse is more common than not, especially in early recovery. Minimizing the risk by any means necessary—from daily 12-step meetings to anti-craving medications—is a top priority for the newly sober. But should your employer be required by law to give you a hand—and a handout?
A federal court last month came pretty close to answering yes, with an important and controversial ruling that employers must provide long-term disability benefits to workers at risk of relapse. This significantly expands Americans with Disabilities Act protections for employees in recovery. Previously, you were covered in order to recover, but your boss could can you if you used again. Now, under certain conditions, you can relapse but still keep your job—and maybe even get a long leave of absence.
Advocates hailed the decision as a victory for workers struggling with drink and drugs. But employers—and especially the insurance companies required to pay out the benefits—not so much. That signals that the decision, as implemented in the real world, is likely to have a downside. Will employers be more reluctant to hire someone with a history of addiction? And will insurance companies find a loophole to avoid paying disability benefits? The recovery community may be troubled more by other questions: Is the decision, which critics say may absolve you from responsibility for your own recovery, a kind of perverse incentive for alcoholics and addicts to stop fighting relapse with every fiber of their will? Could it increase stigma?
The case, which was decided by the First Circuit Court of Appeals in Boston, was brought by Dr. Julie Colby against her employer and its insurance carrier. Colby, a Massachusetts anesthesiologist, got hooked on Fentanyl, one of the strongest, most addictive painkillers on the market. (Addiction to this and other tools of the trade is a common job hazard for anesthesiologists, whose rate of chemical dependency is a whopping 15%.) After one of Colby's colleagues found her lying on a hospital table in 2004—whether passed out or catnapping, we know not—she high-tailed it to rehab. Under the ADA, employers are prohibited from firing an employee whose performance is impaired as a result of alcohol or drug abuse. But you are entitled to one and only one shot.
At the rehab, Colby got a triple-decker diagnosis: “opioid dependence, a dysthymic disorder and obsessive-compulsive personality traits.” She applied to Union Security Insurance Co. (USIC) for disability benefits, documenting her history of depression, crazy working hours (60 to 90 a week) and a painful herniated disc; she used the Fentanyl to self-medicate. USI didn’t dispute her claim, and Colby got her benefits—to the tune of $4,000 a month.
After rehab, Colby continued treatment for substance abuse. What she didn’t do was return to work. She fretted that the temptations of her workplace supply closet made relapse too great a risk. Her doctors and her therapist agreed, recommending out-patient treatment and extended leave.
Is the decision a perverse incentive to stop fighting relapse with every fiber of your will? Could it increase stigma?
But USIC turned down her claim for long-term disability benefits. It argued, first, that the future possibility of relapse did not, under the ADA, require compensation in the present; and second, that Colby—and no one else—was responsible for whether or not she started using again. “The potential for relapse [into chemical dependency] is not the same as a current disability” is how USIC’s rejection letter summed up its case.
The court might have bought USIC's libertarian “free will” argument if Colby had succeeded in staying on the wagon. But she didn’t. Ironically, her relapse was what swayed a majority of the judges to find in her favor. Six months after leaving rehab, in mid-2005, the cops busted her for drunk driving. She re-applied for long-term disability coverage, and again the insurer kicked back her application.
The DUI arrest, the ruling said, indicated that “the plaintiff’s risk of relapse was not merely theoretical.…In our view, a risk of relapse into substance dependence—like a risk of relapse into cardiac distress or a risk of relapse into orthopedic complications—can swell to so significant a level as to constitute a current disability.”
Though probably not the final word, this decision tilts the balance of previous split decisions, affirming a recovering employee’s right to up to 36 months of long-term coverage under the ADA if they can demonstrate a “significant” risk of relapse—especially if the nature of their job is directly responsible for increasing that risk. “For example,” the judges wrote, “an air traffic controller with a seizure disorder may be totally disabled with respect to her regular occupation because the radar illumination and the runway's flickering lights put her at grave risk of convulsive episodes. It is not that she is physically unable to go through the motions required by an air traffic controller's job but rather that her risk of relapse is prohibitively impairing and thus becomes, for all practical purposes, a current disability.”
Advocates predictably applauded the decision. “Relapse or the risk of it is clearly a part of the condition known as addiction,” said David Borden, executive director of StoptheDrugWar.org. “Groups like Physician Leadership on National Drug Policy point out that addiction is similar in this respect to numerous other medical conditions. It’s not surprising that some judges feel this is relevant to disability law as well.”
Among people in recovery, reasonable minds may differ. Personal experience with the tooth-and-nail fight against relapse likely engenders sympathy. But more hard-core sober folk may be of the opinion that you should be entitled only to short-term rehabilitation, and anything beyond that is coddling and even counter-productive. Your view depends largely on where you stand regarding two contentious issues that are fundamental to recovery, especially for people in 12-step programs. Is relapse a risk that the newly sober person is solely responsible for overcoming? Or is it so integral to the disease of addiction that it qualifies as an ongoing disability?
The court’s decision offers employers and their insurance carriers an escape hatch from liability. Employers can wiggle out by addressing the conditions that create the possibility of relapse; Colby’s hospital could have assigned a coworker to monitor her access to drugs, for example. Insurance companies have it easier; they would be off the hook by specifically excluding risk of relapse from coverage in an employer contract.
Still, from the bosses' standpoint, the requirement to grant extended leave plus benefits to an employee who has made a mess of things may be hard to stomach. And they may become more reluctant to hire people in recovery. Will this make it harder for all ex-addicts to find work?
“This case is [primarily] about long-term disability insurance carriers, so I'm not sure that it will have any effect at all on employers,” said Professor Samuel Bagenstos of the University of Michigan, an expert on disability law. “Maybe at the margins—it could increase the cost of long-term disability coverage, but not by much.”
Pro-business advocates disagree. The Cato Institute’s Walter Olson warns that it will not be so simple for insurance companies to exclude coverage for relapse risk. "If the court adopts an over-liberal rule in a coverage dispute, insurance companies usually can rewrite future policies to protect themselves from some or all of the unsought risk,” he wrote on his blog, OverLawyered. “ [But in this decision, that’s] not so with the regulated parties under the ADA.”
“I am particularly worried about the ‘regarded as disability’ corner of ADA law," said Thomas Gies of Crowell & Moring, who frequently litigates on behalf of employers. “A plaintiff [could have a case] asserting that the employer’s refusal to let plaintiff continue in a [public] safety–sensitive job—airline pilots, bus drivers, the captain of a vessel like the Exxon Valdez—is unlawful because the employer's worry about a possible relapse amounts to ‘regarding’ the person as ‘disabled.’”
In the real world, the application of the ADA is often theoretical. Employers hold a trump card: a Last Chance Agreement.
Ruling or no, recovering workers can get fired—or not rehired—under the ADA, Bagenstos said. “As for what employees in recovery can do to keep their jobs in the event of a relapse, the law does not provide much protection, at least when illegal use of drugs [is the issue],” he said. “The ADA protects an employee who is currently participating in a supervised rehabilitation program against dismissal. If an employee relapses, the employer has the legal power to fire.”
The situation is different with alcohol because it is legal. “An employer can't fire an employee for being an alcoholic or for using alcohol outside of work—even if the alcohol use constitutes a relapse,” Bagenstos said. “But an employer can prohibit employees from using or being under the influence of alcohol in the workplace.”
The risk of relapse may not be theoretical, as the court opined, but in the real world the application of the ADA often is. That’s because employers hold a trump card called a Last Chance Agreement. An LCA is exactly what its name suggests: a written contract between an employer and a substance-abusing employee who has committed a fireable offense that gives the employee one last chance in lieu of being axed—but only if you agree to certain conditions.
Say you miss a week of work because you were on a bender. When you show up at your job on Monday, all hang dog, your boss can show you the door—if you have not been previously diagnosed as an addict (and therefore have an ADA-defined “disability”). But if you do have an addiction diagnosis—and maybe even if you’re just a valued employee who previously made a serious effort to recover—your employer may offer you an LCA. (If this is a first offense, your employer has to do so.) The terms of this contract will certainly require you to stay sober; additional conditions often include successfully completing a treatment program and submitting to alcohol or drug testing. An LCA can last five years or more. But it’s a sweet alternative to getting canned.
If you slip up, of course, you’re out on your ass. Don’t even think of running to a lawyer waving the ADA handbook and crying “Discrimination!” Addiction may be defined as a disability, but you kissed that argument goodbye when you signed the LCA—and the conditions, which were probably not unreasonable—that tied your continued employment to your continued sobriety. (If you insist on suing, you'll probably have to endure the excruciating public airing of all your previously "confidential" dirty laundry.)
The take-away? In certain circumstances—an exceptionally unaccommodating employer coupled with exceptionally challenging working conditions, throw in a hard-ass insurance company just for fun—if you’re in recovery, you may be able to shake down up to 36 months of disability benefits. But you’ll probably have to sue, which can eat up years and savings and cause serious headaches. It may even be one of the few endeavors that is harder than getting and staying sober.
Ted Rall is a syndicated columnist, cartoonist and war correspondent. His most recent book is The Book of Obama: How We Went From Hope and Change to the Age of Revolt. Check out his blog here.