**Section 7:**

**Disability-Related Issues**

This section discusses the intersection of interests between the
substance abuse treatment and recovery community and the disability
community. It discusses co-occurrence of physical or mental disabilities
with substance abuse problems, as well as the circumstances where
alcoholism or drug addiction may constitute a disability that may
warrant reasonable accommodations to help individuals find and keep
employment. This section also describes challenges experienced by people
in recovery who seek employment, and how fears of employment
discrimination may discourage working individuals from seeking substance
abuse treatment when needed. It also provides a brief overview of how
various federal disability non-discrimination laws address alcoholism
and drug addiction as well as related confidentiality and non-disclosure
laws governing the release of substance abuse treatment records. A few
relevant recent court cases are also described.

The need to encourage participation of persons with disabilities, both
in the workplace and in society as a whole, has gained increasing
attention among policymakers. A major response to this need is the
Administration's New Freedom Initiative, a comprehensive set of
proposals designed to ensure that Americans with disabilities have the
opportunity to learn and develop skills, engage in productive work, make
choices about their daily lives, and participate fully in their
communities. In addition, federal disability non-discrimination laws may
provide coverage for some individuals in treatment or recovery from
alcoholism and/or drug addiction, although the extent of these
protections is more limited and is still being determined by case law in
the courts.

Even though substance abuse is considered a disability under relevant
laws in limited circumstances, the substance abuse treatment/recovery
community and the disability community share some concerns and provide
common ground for increased cooperation between the two communities. For
instance, many of the strategies being implemented to facilitate the
employment of people with disabilities may be appropriate, even if not
required by law, for some individuals with substance abuse problems,
particularly those with co-occurring disabilities and those in treatment
or recovery from addiction. In addition, the incidence of substance
abuse is greater among people with disabilities than among the general
population. Thus, ensuring access to substance abuse treatment for
people with co-occurring conditions and facilitating the employment of
persons in recovery are important ways to fulfill the goals of the New
Freedom Initiative.

As will be discussed further in this section, substance abuse can
seriously impede an individual's ability to succeed in employment. There
are three distinct, but sometimes overlapping, types of employment
challenges requiring different strategies to overcome, as described
briefly below:

-   Challenge of finding treatment that is structurally and
    programmatically accessible for people with co-occurring
    disabilities.

-   Challenge of identifying when an underlying, but unrecognized,
    substance abuse problem is preventing workforce investment customers
    from benefiting from core services and securing appropriate
    employment.

-   Challenge of overcoming barriers posed by hiring practices that
    disqualify or discourage job seekers or workers in treatment or
    recovery from being hired or promoted.

##### 7.1 Co-Occurring Conditions  {#co-occurring-conditions .unnumbered}

***Co-occurrence*** (also called ***co-morbidity***) is the existence of
more than one condition at a time. This section presents evidence that a
significant number of persons have ***co-occurring*** or
***co-existing*** disabilities and substance abuse problems.
Disabilities include obvious physical impairments, such as paralysis due
to a spinal cord injury, but also non-apparent conditions, such as
learning disabilities, depression and other mental illnesses, or
traumatic brain injury.

# 7.1.1 National Data on Co-Occurring Mental Illness and Substance Abuse {#national-data-on-co-occurring-mental-illness-and-substance-abuse .unnumbered}

The disability for which there are the most data available about
co-occurrence with substance abuse is mental illness. In the fields of
mental health and substance abuse treatment, co-existing mental illness
and alcohol and other drug problems are sometimes referred to as ***dual
diagnosis*** or ***dual disorders***.[^1] Because a significant
proportion of individuals have dual disorders, the 2001 NHSDA included
new questions that asked respondents how frequently they experienced
various symptoms of psychological distress during the month in the past
year when they were at their worst emotionally. [^2] The 2001 National
Household Survey on Drug Abuse (NHSDA) found significant overlap between
substance abuse and serious mental illness.[^3]

For example, adults who abuse alcohol or other drugs are more likely to
have serious mental illness than those who do not engage in such use.
Compared to 7.3% in the overall adult survey population, the rate of
serious mental illness was 16.6% of illicit drug users and 20.3% of
substance abusing or substance dependent adults.

Conversely, the NHSDA also found that persons with serious mental
illness are more likely to abuse alcohol or other drugs than persons
without mental illness. Most strikingly, the rate of substance abuse or
dependence among adults with serious mental illness (20.3%) was more
than three times greater than that of adults without mental illness
(6.3%).

# 7.1.2 Disabilities Among Clients of Substance Abuse Treatment

Currently there are no national data available on the prevalence of
disabilities other than mental illness among persons with substance
abuse problems. However, state data indicate that there is a higher
prevalence of disabilities among persons in substance abuse treatment
than in the general population. According to the Substance Abuse and
Mental Health Services Administration's Center for Substance Abuse
Treatment, the New York State Office of Alcoholism and Substance Abuse
Services (OASAS) collects some of the most comprehensive data on
substance abuse treatment for persons with disabilities.[^4] OASAS
client service statistics from 1997 indicate that 22% of clients served
in state-licensed substance abuse treatment facilities that year were
recorded as having a co-occurring disability.

Since the presence of a disability was measured via client self-report
or by staff not necessarily trained in disability assessment,
non-apparent disabilities may have been overlooked. Thus, the actual
prevalence of co-occurring disabilities is believed to be much higher,
closer to 40% of treatment clients in the state. This is twice the 20%
disability prevalence in the U.S. population in 1997, estimated by the
Census Bureau.[^5] Of the New York State OASAS clients with co-occurring
disabilities, the majority (59%) had a disability not related to mental
illness.

# 7.1.3 Substance Abuse Among Persons with Disabilities

In addition to the greater than average prevalence of disabilities among
persons with drug and alcohol problems, the converse is also true.
Substance abuse appears to be more widespread among persons with
disabilities than in the general population. While substance abuse or
dependence affects 10% of the general population, it affects at least
20% of vocational rehabilitation clients, according to studies by the
Rehabilitation Research and Training Center on Drugs and Disability.[^6]

##### 7.1.4 Employment Challenges for People with Co-Occurring Disabilities and Substance Abuse Problems {#employment-challenges-for-people-with-co-occurring-disabilities-and-substance-abuse-problems .unnumbered}

People with co-occurring disabilities and substance abuse problems need
to have both of these issues addressed in order to succeed in the
workplace. If only one is addressed, the person often will not succeed.
For example, a person might have productivity problems because he or she
has failed to request an accommodation for his/her disability. If there
is also a substance abuse problem, the productivity problem will remain
even following effective treatment for the substance use disorder.
Conversely, when a person's disability is accommodated through changes
in equipment or communication with his/her supervisor, substance abuse
will still impact the productivity if it is not addressed.

All people working with the recovering person (substance abuse treatment
providers, One-Stop Career Center staff, and supervisors) need to be
aware that a person in treatment may have a co-occurring disability that
requires accommodation in order for treatment to be effective. Likewise,
One-Stop Career Center staff members need to be sensitized and trained
in how to serve job-seeking customers with co-occurring disabilities and
substance abuse issues.

In addition, people who work with a person in recovery need to
distinguish between signs of substance abuse and signs of disability.
Sometimes, the two are confused. For example, people who have mild
cerebral palsy are mistakenly believed to be drunk, because of their
speech impediments and/or uncoordinated movements. Other signs of
disability that are sometimes mistakenly considered signs of substance
abuse include shaking or tremors, difficulty modulating tone of voice,
seizures, facial tics, inattention to task detail, and cognitive
difficulties such as absent-mindedness. However, mistaking signs of
substance abuse for a disability can occur since people with
disabilities may develop substance abuse problems. But, their low
productivity is considered part of their disability. This can occur when
employers are hesitant to confront people with disabilities about their
performance issues.

Efforts may be needed to increase accessibility of substance abuse
treatment for people with co-occurring disabilities. At the very least,
treatment facilities need to be physically accessible for people with
mobility impairments. Accessibility to treatment may be affected by:

-   Physical structure of treatment facility.

-   Capacity of staff to engage people with cognitive, learning,
    communication, or concentration problems.

-   Ability of staff to distinguish between behaviors and attitudes
    caused by substance abuse, versus those attendant to other
    disabilities.

-   Ability to effectively link substance abuse and other treatment or
    rehabilitation interventions (as noted by the importance placed on
    coordinated treatment in evidence base of mental health practice in
    working with people with co-occurring substance abuse and major
    mental illness disorders).

Reasonable accommodation is an important strategy to consider in
employing people with co-occurring disorders. Rather than looking at it
as a legal obligation, it is helpful when employers recognize that they
can accommodate workers as a routine part of their management practices.
If individuals bring valuable skills and contributions to the workplace,
then employers seldom need a legal mandate to support their continued
employment through reasonable accommodation.

When employers adopt a disability-friendly workplace, it can improve
productivity. For example, an employer who has flextime may not have to
make special accommodations for people with substance abuse disorders
who need to arrange their treatment schedules. Also, some employers have
workstations where the desktop can be adjusted to various heights,
making things easier for people with physical disabilities as well as
people of different heights and work preferences.

2.  Challenges in Recognizing Substance Abuse as an Impediment to
    Employment

    The way the public perceives people with disabilities and those
    addicted to alcohol and/or other drugs is sometimes similar, and
    there are particular similarities in this regard with certain
    non-apparent disabilities, such as mental illness or learning
    disabilities. Public perception issues may contribute to significant
    challenges for those who are trying to provide assistance in finding
    employment. As with certain non-apparent disabilities, it is not
    always easy to recognize whether a person has substance abuse
    problems. Consequently, when determining need for service, issues
    related to alcohol and drug use may be overlooked.

    With non-apparent disabilities such as mental illness and learning
    disabilities, behaviors exhibited are sometimes attributed to an
    individual's lack of motivation and are not recognized as an
    attribute of a disability. Similarly, persons addicted to alcohol
    and/or other drugs are often misunderstood, misperceived, and
    stigmatized, as are persons with these other conditions.

    Workforce development programs may need to increase their capacity
    to identify and refer customers (both with and without co-occurring
    disorders) whose substance abuse problems are preventing their
    employment success. Staff may need training to conduct screening for
    substance abuse, lists of available resources, or even a specialist
    in substance abuse issues to whom referrals can be made for further
    assessment.

3.  Employment Challenges Experienced by Persons in Substance Abuse
    Treatment and/or Recovery

Under certain circumstances, drug and alcohol dependence are considered
disabilities that are protected by anti-discrimination laws such as the
Americans with Disabilities Act. In general terms, the protections apply
only to persons with clinically diagnosed substance use disorders who no
longer use alcohol or drugs. Furthermore, protections apply more broadly
for alcoholism than for drug addiction. Section 7.4 below contains more
detailed information about how disability laws address persons in
recovery. How disability-related civil rights protections address
persons in recovery from substance abuse is a complex and controversial
issue, as demonstrated by recent court cases, a few of which are
described in Section 7.6.

Persons in recovery from substance abuse report that they encounter
stigma, prejudice, and discrimination. The extent to which stigma and
fear of discrimination hinders the employment success of persons in
recovery is described by findings of recent public opinion surveys of
persons in recovery and the general public.

Personal experiences with actions that are perceived to unfairly
discriminate are widely reported by persons in treatment and recovery.
In a recent survey of persons in recovery, conducted by the public
opinion research firm Peter Hart & Associates, one in four respondents
said they experienced discrimination in employment or health care, and
one in five feared being fired if their employer found out about their
addiction histories.[^7] Similarly, a survey of patients in a methadone
maintenance treatment program for heroin addiction in Arizona found that
more than two-thirds of respondents were denied employment or lost an
existing job after testing positive for methadone, often despite
explanatory letters from the methadone clinic.[^8]

Employment bias against persons in recovery from addiction appears to be
widespread among the general public, despite its belief about the nature
of addiction and support for substance abuse treatment. For example, in
a 1999 survey by the Hazelden Foundation, 80% of respondents thought
alcoholism was a disease, and 62% thought health insurance coverage for
chemical dependency treatment was as important as coverage for diseases
such as diabetes and heart disease.[^9] However, the same survey found
that fewer than one in six respondents would hire a qualified job
candidate in recovery from substance abuse, if there were an equally
qualified candidate who had never needed drug or alcohol treatment.[^10]

The stigma attached to substance abuse can act as a significant barrier
to seeking treatment. For example, in a September 2002 *Workplace
Recovery Benefits Survey* of workers with employer-sponsored health
insurance, more than half of respondents felt less comfortable asking a
supervisor about coverage of substance abuse treatment than about
treatment for other diseases such as diabetes.[^11] More than one in
five respondents believed that seeking health coverage for substance
abuse treatment would cause negative consequences at work, such as being
fired, losing a license, or failing to get a promotion. More than one in
six respondents said they would be reluctant to seek employer-provided
health coverage of substance abuse treatment for themselves or a family
member.

##### 7.4 Substance Abuse and Disability Civil Rights Laws  {#substance-abuse-and-disability-civil-rights-laws .unnumbered}

This section summarizes how federal civil rights laws regarding
disabilities, most notably the Americans with Disabilities Act, affect
policies toward persons with substance abuse problems within the
workplace, the workforce investment, and substance abuse treatment
systems.

Federal laws barring discrimination on the basis of disability provide
similar definitions of the terms "disability," "individual with a
disability," and "qualified individual with a disability." Under those
laws, a "disability" is a "physical or mental impairment" that
"substantially limits" a "major life activity." The list of "physical or
mental impairments" explicitly includes alcoholism and drug addiction.
The list of "major life activities" includes such examples as caring for
one's self, performing manual tasks, and working, among others.
Therefore, for alcohol or drug use to be considered a disability under
these laws, that use must constitute an addiction and have significant
effects on the user's life.

In general terms, these disability non-discrimination laws cover
individuals who are in treatment for or recovery from substance abuse
disorders but exclude from civil rights protections those who are
engaged in current substance abuse. These laws also treat current
alcohol use differently from the use of other drugs.

#### 7.4.1 Overview of Disability Civil Rights Laws 

The federal civil rights laws that are the most relevant to substance
abuse issues are those that prohibit discrimination against persons with
disabilities. These are Section 504 of the Rehabilitation Act, the
Americans with Disabilities Act (ADA), and Section 188 of the Workforce
Investment Act.

**The Rehabilitation Act of 1973 (Rehabilitation Act)**

The Rehabilitation Act was the first federal law to forbid
discrimination on the basis of disability; later laws, such as the ADA
(see below), built upon the foundation laid by this Act. The Act has
been amended a number of times since 1973, and in large part remains in
effect today.

Section 504 of this Act is the section most relevant to workforce
development and substance abuse treatment services as it bars
disability-based discrimination in programs or activities that receive
federal financial assistance. Section 504 protects qualified individuals
with disabilities. Under this law, individuals with disabilities are
defined as persons with a physical or mental impairment that
substantially limits one or more major life activities. People who have
a history of, or who are regarded as having, a physical or mental
impairment that substantially limits one or more major life activities
are also covered. Alcoholism and drug addiction are considered
impairments that may substantially limit major life activities.

Other portions of the Rehabilitation Act may also be relevant, in
varying degrees, to workforce development and substance abuse treatment
programs. Section 503 of the Act applies to Federal government
contractors and subcontractors with contracts of more than \$10,000; it
not only prohibits discrimination by such contractors and
subcontractors, but also requires them to take affirmative action to
hire and retain persons with disabilities. Sections 501 and 508 apply to
federal departments and agencies themselves: Section 501 bars
discrimination (and requires affirmative action) on the basis of
disability by such departments and agencies, while Section 508 requires
them to make their electronic and information technology accessible to
persons with disabilities.

**The Americans with Disabilities Act of 1990 (ADA)**

The ADA prohibits discrimination on the basis of disability in these
major areas: employment, state and local government, public
accommodations, commercial facilities, transportation, and
telecommunications. Two specific titles of the ADA related to employment
and to workforce investment services are discussed below.

Title I forbids discrimination against qualified persons with
disabilities in recruitment, referral, hiring, promotions, training,
pay, social activities, and other "privileges of employment." A
qualified employee or applicant with a disability is someone who
satisfies skill, experience, education, and other job-related
requirements of the position held or desired, and who, with or without
reasonable accommodation, can perform the essential functions of that
position. It also requires those covered to make reasonable
accommodations for the known disabilities of qualified people.
Importantly, Title I greatly restricts the questions that can be asked,
by an employer or employment agency (including a workforce investment
program acting as such an agency, as discussed above), about an
applicant's disability before an offer of employment is extended.

Title II of the ADA applies to public entities, such as state and local
governments and any of their departments, agencies, or programs, whether
or not they receive federal financial assistance. This Title applies to
most workforce investment programs as well as to many substance abuse
treatment programs. It bars discrimination against qualified persons
with disabilities and requires programs to modify their policies,
practices, and procedures where necessary to avoid such discrimination.

As with the Rehabilitation Act, other portions of the ADA may apply to
workforce investment programs in particular circumstances. Title I of
the ADA contains the law's employment-related provisions. It applies to
state and local governments in their relationships with their own
employees and applicants for employment, as well as to all private
employers with 15 or more employees, labor unions, and employment
agencies.

Some workforce investment programs regularly conduct activities similar
to those provided by employment agencies---for example, referring
customers to jobs, or contacting employers to inquire about openings.
Where those activities constitute a principal part of a program's
activities, the program falls under the definition of "employment
agency," and therefore the services that it provides to customers are
covered by Title I as well.

**WIA Section 188**

Section 188 of the Workforce Investment Act (WIA) forbids
disability-based discrimination by any entity that receives federal
financial assistance under WIA, and by any program or activity that is
provided as part of the One-Stop system by a One-Stop partner. In
operation, Section 188 bars discrimination on the basis of disability in
programs, services, and employment (including the application process
for any of these). WIA Section 188 regulations define disability as a
physical or mental impairment that substantially limits one or more of
the major life activities of such individual; a record of such an
impairment; or being regarded as having such an impairment. The list of
conditions considered to be "physical or mental impairments" in the
regulations includes drug addiction and alcoholism.

**7.4.2 Circumstances Under Which Addiction May Be Treated as a
Disability in Work Situations**

As stated earlier, the federal non-discrimination laws summarized above
limit the circumstances under which substance abuse is considered a
disability. Most notably, these laws address alcohol differently from
other drugs.

# Persons Currently Using Drugs Illegally

The definition of "individual with a disability" under federal law
explicitly excludes persons who are *currently* engaging in the illegal
use of drugs. (The "illegal use of drugs" includes both the use of
illegal "street drugs" as well as the unauthorized use of legal
prescription drugs.) This exclusion means that even though an
individual's drug addiction constitutes a disability, it is not against
the law to take adverse action against that person---to exclude him from
a program or activity, or otherwise give him less favorable treatment
than others---*because of* that current illegal use of drugs.

It is important to note that only individuals who are *currently* using
drugs illegally are excluded from protection under the relevant federal
laws. The following categories of persons *are* considered individuals
with disabilities under those laws, and are therefore protected from
discrimination on the basis of their drug addiction:

-   Persons who have successfully completed a supervised drug
    rehabilitation program (an in-patient, out-patient, or employee
    assistance program), and who are no longer using drugs illegally;

-   Persons who have been rehabilitated successfully in some other way
    (e.g., recognized self-help programs such as Narcotics Anonymous),
    and who are no longer using drugs illegally; and

-   Persons who are currently participating in a supervised
    rehabilitation program, and who are no longer using drugs illegally.

-   Persons who are not using drugs illegally, but who are mistakenly
    believed to be doing so, are also protected from discrimination.

To ensure that a customer's past drug use is not recurring, an employer
or workforce investment program may request evidence that the customer
is participating in a rehabilitation program or has been rehabilitated
successfully in some other way, or may request the results of a drug
test.

Protections from discrimination on the basis of disability, and
exclusions from those protections, generally apply not only in the
context of employment, but also in the context of providing benefits,
such as Temporary Assistance for Needy Families, and services, such as
those offered by workforce investment programs. However, in certain
circumstances, even individuals who are *currently* using drugs
illegally are protected from discrimination, if their addictions
substantially limit their major life activities. If such persons are
otherwise qualified to participate, they may not be excluded from any
program or activity that:

-   Provides health services;

-   Provides vocational rehabilitation services under Title I of the
    Rehabilitation Act of 1973, as amended;

-   Conducts research and training under Title II of the Rehabilitation
    Act of 1973, as amended; or

-   Provides professional development, or conducts special projects or
    demonstrations, under Title III of the Rehabilitation Act of 1973,
    as amended.

Alcoholics and Alcohol Use: Employment

In the employment context, whether an alcoholic is protected from
discrimination depends both on whether he is currently using alcohol,
and on how that alcohol use affects his job performance. The definition
of "individual with a disability" in federal law explicitly excludes an
individual who is *currently* using alcohol if:

-   That current use prevents him from performing the duties of the job
    in question, or

-   Because of his current alcohol abuse, his employment would
    constitute a direct threat to property or to the safety of others.

In other words, an individual in one of these two categories is *not*
protected from adverse action *in the employment context* on the basis
of his alcoholism or alcohol use.

A complete explanation of the concept of "direct threat," and of the
distinction between adverse action on the basis of someone's *status* as
an alcoholic and on the basis of his alcohol-related *behavior*, is
beyond the scope of this Briefing Book. However, the Equal Employment
Opportunity Commission's Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities may be helpful in
understanding these issues, particularly in the context of employment.

# 7.4.3 Where to Find More Information

**Americans with Disabilities Act**

Summary of statute:

-   Questions and answers about Titles I through III and miscellaneous
    provisions of the ADA are available at
    <http://www.usdoj.gov/crt/ada/qandaeng.htm>. Information is also
    available from the U.S. Dept. of Justice ADA Info Line at (800)
    514-0301.

-   "Title II Highlights," <http://www.usdoj.gov/crt/ada/t2hlt95.htm>
    or (800) 514-0301 (voice) or (800) 514-0383 (TDD/TTY).

Summary of Regulations:

-   Overview of Title I requirements in "Federal Laws Prohibiting
    Employment Discrimination: Questions and Answers" at
    <http://www.eeoc.gov/facts/qanda.html>.

-   Explanations of specific provisions of ADA Title I on the
    "Enforcement Guidances and Related Documents" webpage at
    <http://www.eeoc.gov/policy/guidance.html>.

-   EEOC info line at (800) 669-4000 (voice) or (800) 669-6820
    (TDD/TTY).

-   *A Technical Assistance Manual on the Employment Provisions
    (Title I) of the ADA,* January 1992, Section VIII, pp. 3-4.
    Available from the Equal Employment Opportunity Commission at (800)
    669-3362.

-   *Title II Technical Assistance Manual,* U.S. Dept. of Justice,
    <http://www.usdoj.gov/crt/ada/taman2.html> or (800) 514-0301 (voice)
    or (800) 514-0383 (TDD/TTY).

#### Rehabilitation Act, Section 504 

"Your Rights Under Section 504 of the Rehabilitation Act" Fact Sheet,
June 2000
([http://www.hhs.gov/ocr/504.html](../(http://www.hhs.gov/ocr/504.html)).
U.S. Department of Health and Human Services, Office of Civil Rights,
(800) 368-1019 (voice) or (800) 537-7697 (TDD).

Summaries of the regulations:

-   HHS: "Policy Guidance: Prohibition Against Discrimination on the
    Basis of Disability in the Administration of TANF (Temporary
    Assistance for Needy Families)," January 2001. Available at
    <http://www.hhs.gov/ocr/prohibition.html> or by calling (800)
    368-1019 (voice) or (800) 537-7697 (TDD).

-   ED: "The Civil Rights of Students with Hidden Disabilities Under
    Section 504 of the Rehabilitation Act of 1973," January 1995.
    ([http://www.ed.gov/offices/OCR/docs/hq5269.html](../(http://www.ed.gov/offices/OCR/docs/hq5269.html)).
    Available from the Office for Civil Rights, (800) 421-3481 or (202)
    205-5413 (voice), (877) 521-2172 (TTY).

**WIA Section 188**

Summary of regulations: go to <http://wdsc.doleta.gov/disability> and
click on "Training and Employment Information Notice 16-99 on One-Stop
Accessibility" or call the DOL Civil Rights Center at (202) 219-8927
(voice) or (800) 326-2577 (TTY/TDD).

###### 7.5 Confidentiality/Non-Disclosure Laws 

**7.5.1 Disability and Other Medical Records**

Disability-related records, records containing information about the
results of medical examinations and other similar assessments, and other
records containing demographic information (including disability status)
must be kept confidential. The circumstances under which caseworkers or
agency staff may disclose medical information to other parties, such as
employers, prospective employers, or even other staff members, are
extremely limited.

Information about an individual's disability, or other medical
information, may be disclosed *only* to the following persons under the
following circumstances:

-   Supervisors and managers may be informed about disability-related
    information, but only to the extent necessary to explain limitations
    on the individual's activities, or to provide ***reasonable
    accommodations***;

-   First aid and safety personnel may be informed about an individual's
    medical condition, where appropriate, if the condition might require
    emergency treatment; and

-   Government officials investigating compliance with disability
    nondiscrimination laws may be given an individual's medical
    information if they request it.

    Before individuals are asked to provide information about their
    medical condition or history, they must be told that the information
    is being requested on a voluntary basis. They must also be informed
    about the ways in which the information will be used and the narrow
    circumstances under which the information may be disclosed.

# 7.5.2 Records for Substance Abuse Treatment 

The Public Health Service Act includes laws that restrict the disclosure
and use of information about individuals in federally assisted drug and
alcohol treatment programs. These confidentiality requirements were
enacted to encourage people with substance abuse problems to enter and
complete treatment without fear of public disclosure of their treatment.

According to the Centers for Substance Abuse Treatment,

> The Federal confidentiality law and regulations have proved to be both
> remarkably effective and practical in protecting patients from the
> potential harm of unwarranted disclosures while permitting the release
> of information in appropriate circumstances. Increasingly, however,
> the substance abuse treatment field is being called upon to interact
> and communicate with outside entities...who are not familiar with
> these protections or how to utilize the provisions authorizing
> appropriate disclosures.

Thus it is important for workforce agencies to become familiar with
these confidentiality requirements when serving persons who need or have
undergone substance abuse treatment.

**7.5.3 Health Insurance Portability and Accountability Act of 1996
(HIPAA)**

To improve the efficiency and effectiveness of the health care system,
the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
included "Administrative Simplification" provisions requiring national
standards for electronic health care transactions. At the same time,
Congress recognized that advances in electronic technology could erode
the privacy of health information. Consequently, HIPAA also incorporated
provisions that mandated the adoption of federal privacy protections for
individually identifiable health information.

Regulations strengthening privacy protections of individuals' medical
information took effect in April 2003 (and will take effect for small
health plans by April 2004). These regulations set national standards
for the protection of health information, as applied to the three types
of covered entities: health plans, health care clearinghouses, and
health care providers who conduct certain health care transactions
electronically. Covered entities must implement standards to protect and
guard against the misuse of individually identifiable health
information. Failure to timely implement these standards may, under
certain circumstances, trigger the imposition of civil or criminal
penalties. Whether these new protections will make workers more willing
to seek substance abuse treatment remains to be seen.

# Where to Find More Information

-   For a 12-page overview of the laws and regulations relating to
    patient confidentiality and their purpose, scope, general rules and
    exceptions, see *Confidentiality of Patient Records for Alcohol and
    Other Drug Treatment* (TAP #13, BKD156), 1994. Available at
    <http://www.treatment.org/TAPS/TAP13/tap13chap1.html> or by
    calling (800) 729-6686.

-   For more information on the HIPAA medical privacy regulations, see
    <http://hhs.gov/ocr/hipaa>. A technical assistance guide that
    compares the new HIPAA regulations with existing confidentiality
    regulations for substance abuse treatment records (42 CFR part 2) is
    being prepared for posting at
    <http://www.samhsa.gov/hipaa/ta_conf.htm>.

##### 7.6 Recent Court Cases  {#recent-court-cases .unnumbered}

Employers may have legitimate concerns about employees who are in
recovery from substance abuse or dependence, such as the safety
consequences of a relapse. However, the goals of greater inclusion of
persons with disabilities in the workforce make it desirable to ensure
that employers' approaches to current and potential employees in
recovery are appropriate rather than punitive.

The ADA was written as a conceptual "outline" for protecting a class of
Americans whose civil rights are seen as requiring special protections
due to discrimination and/or the prejudicial and hurtful misperceptions
of others. Given the wide and somewhat vaguely defined nature of
"disability" and "impairment," the law will be further defined through
tort findings emerging from court cases.

Over the past decade, there have been relatively few filings under the
ADA on behalf of persons whose disability is related to substance abuse.
There are several reasons for this, not the least of which is that
persons recovering from drug addiction or alcoholism are reluctant to
draw attention to their past behavior when it may not be understood or
accepted in context by the community, employers, or the court. In the
filings to date against employers for discrimination because of
addiction, alcoholism, or recovery from substance abuse, the majority of
these cases have been found in favor of the employer. A number of these
findings have revolved around safety issues in the workplace and work
standards that are enforced with all employees. Examples of the types of
employment discrimination reported by persons in recovery include being
denied jobs or promotions that they are qualified for, and having
restricted job functions.

Two relatively recent court cases that illustrate potential issues with
the ADA are *Raytheon v. Hernandez* and *EEOC v. Exxon*. Another
relevant, but non-ADA case is *Eastern Associated Coal Corp. v. United
Mine Workers, District 17*.

##### *Raytheon Co. v. Hernandez*[^12]

Joel Hernandez, the plaintiff, was forced to quit his job at a
California missile factory in 1991 because his employer, Raytheon,
discovered he was using cocaine. Hernandez, who had worked at the plant
for 25 years and whose most recent job was calibrating guidance systems
for missiles sold to the U.S. government, applied for a new job in 1994,
saying he had successfully completed treatment for his addictions to
cocaine and alcohol. But the company rejected him, citing a policy
against rehiring former employees who were terminated for any violation
of its misconduct rules. Hernandez sued in federal court, claiming that
this policy discriminated against him, in violation of the ADA, because
he had suffered from addiction in the past. The 9th Circuit ruled in
Hernandez's favor. The case reached the U.S. Supreme Court in February
2003 and is currently pending.

##### *EEOC v. Exxon*[^13] 

Following the Exxon *Valdez* oil spill, Exxon adopted a policy that
permanently removed all employees who had undergone treatment for
substance abuse from safety-sensitive positions. In Exxon's view, that
policy was a matter of business necessity due to the magnitude and
probability of potential harm, as shown by the *Valdez* spill. The EEOC
argued that Exxon failed to prove that employees screened out posed a
direct threat to health or safety and its policy therefore violated the
ADA by firing even those employees who had undergone substance abuse
treatment decades ago. The Fifth Circuit rejected the EEOC's challenge
and determined that when an employer uses a general safety-based
qualification standard across the board---as long as the qualification
standard is job related and consistent with business necessity---the
policy does not violate the ADA even though employees who do not pose a
direct threat to the health or safety of others are screened out.

##### *Eastern Associated Coal Corp. v. United Mine Workers, District 17*[^14] 

James Smith worked for Eastern Associated Coal Corporation as a truck
driver, subject to Department of Transportation regulations requiring
random drug testing of workers engaged in "safety-sensitive" tasks.
After each of two occasions on which Smith tested positive for
marijuana, Eastern sought to discharge him. The arbitration provisions
in petitioner Eastern Associated Coal Corporation's
collective-bargaining agreement with the United Mine Workers, District
17 specified that Eastern must prove that it had "just cause" to
discharge an employee. Each time, the union went to arbitration, and the
arbitrator concluded that the drug use did not amount to "just cause"
and ordered Smith's reinstatement on certain conditions. On the second
occasion, Eastern filed suit to vacate the arbitrator's award. The
District Court ordered the award's enforcement, holding that Smith's
conditional reinstatement did not violate the strong regulation-based
public policy against drug use by workers who perform safety-sensitive
functions. The Fourth Circuit affirmed. On November 28, 2000, the
Supreme Court affirmed the decision of the Circuit Court.

[^1]: *Assessment and Treatment of Patients with Coexisting Mental
    Illness and Alcohol and Other Drug Abuse.* (CSAT Treatment
    Improvement Protocol #9). U.S. Department of Health and Human
    Services, Substance Abuse and Mental Health Services Administration,
    Center for Substance Abuse Treatment (CSAT), 1994. Available at
    <http://www.health.org/govpubs/bkd134/> or by calling (800) 729-6686
    (item #BKD134).

[^2]: Substance Abuse and Mental Health Services Administration. (2002).
    "Prevalence and Treatment of Mental Health Problems (Chapter 8),
    *Results from the 2001 National Household Survey on Drug Abuse:
    Volume I. Summary of National Findings* (Office of Applied Studies,
    NHSDA Series H-17, DHHS Publication No. SMA 02-3758), p. 69.
    Available at <http://www.samhsa.gov/oas/nhsda/2k1nhsda/PDF/ch8.pdf>
    or by calling (800) 729-6686.

[^3]: Substance Abuse and Mental Health Services Administration. (2002).
    "Prevalence and Treatment of Mental Health Problems (Chapter 8),
    *Results from the 2001 National Household Survey on Drug Abuse:
    Volume I. Summary of National Findings* (Office of Applied Studies,
    NHSDA Series H-17, DHHS Publication No. SMA 02-3758), Tables 8.6,
    8.7, 8.9, 8.10, 8.12, 8.14, and 8.15. Available at
    <http://www.samhsa.gov/oas/nhsda/2k1nhsda/vol3/Sect8v1_PDF_W_1-34.pdf>.

[^4]: *Substance Abuse Disorder Treatment for People with Physical and
    Cognitive Disabilities* (Treatment Improvement Protocol #29). U.S.
    Department of Health and Human Services, Substance Abuse and Mental
    Health Services Administration, Center for Substance Abuse Treatment
    (CSAT), 1998. Available at
    <http://www.health.org/govpubs/BKD288/29d.aspx> or by calling (800)
    729-6686 (item #BKD288).

[^5]: McNeil, Jack. "Americans with Disabilities: 1997 Household
    Economic Studies." *Current Population Reports,* February 2001.
    Available at
    [http://landview.census.gov/prod/2001pubs/p70-73.pdf](http://www.dsc.ucsf.edu/UCSF/pub.taf?grow=3).

[^6]: CSAT TIP #29, 1998.

[^7]: Curley, Bob. "Discrimination Against People in Recovery Rampant,
    Advocates Say." *Join Together Online,* August 14, 2002. Available
    at
    <http://www.jointogether.org/sa/news/features/reader/0,1854,553416,00.html>.

[^8]: Addiction Treatment Forum. "Patient's Perspectives -- MMT Patients
    Battle Prejudice." *Addiction Treatment Forum,* Volume VIII, No. 4
    (Fall 1999). Available at
    <http://www.atforum.com/siteroot/pages/current_pastissues/fall99.shtml#anchor1221360>.

[^9]: "Hazelden Survey on Bias Against Recovering Alcoholics and
    Addicts." Hazelden Foundation, December 1999. Available at
    <http://www.hazelden.org/research/publication_detail.cfm?id=91>.

[^10]: *Ibid.*

[^11]: "New Hazelden Survey Reveals U.S. Employees Fear Loss of Job If
    They Seek Drug, Alcohol Treatment." Hazelden Foundation, October 15,
    2002. Available at
    <http://www.hazelden.org/press_releases_detail.dbm?ID=1511>.

[^12]: Summarized by Lane, C. "High Court Fills in Docket for Next
    Term." *Washington Post,* February 25, 2003.

[^13]: Summarized by Phelps Dunbar LLP. *Employment Law Letter* (May
    2000, <http://www.phelpsdunbar.com/site/pdfs/Ell0500.pdf>) and *HR
    Alert Newsletter* (April 2000,
    <http://www.phelpsdunbar.com/site/pdfs/hr0400.pdf>).

[^14]: Summarized by BNA, Inc. "Supreme Court Decision in Eastern
    Associated Coal Corp. v. United Mine Workers, District 17." *Daily
    Labor Report,* No. 230 (November 29, 2000, p. E-1).