Here is a common workplace scenario: An employee tests positive for use of alcohol following a random screening. As a condition of continuing employment, the employee consults with the company’s EAP, which informs the employer that the employee is seeking treatment for alcoholism. The employer then requires that the employee enter into an agreement whereby he or she submits to additional testing, and promises not to consume alcohol on or off the job. Failure to follow this promise will result in automatic termination.

In response to this scenario, last month the Equal Employment Opportunity Commission’s legal counsel stated that the employer’s policy would likely violate the Americans with Disabilities Act. Under the ADA, alcoholism is a protected disability, whether or not the employee is receiving treatment. While the ADA does not stop employers from taking action against employees who are impaired at work, the EEOC stated that the described employer’s policy could violate the law. Employees who are alcoholics are treated differently than those who are not, because non-alcoholics are not disciplined for drinking off the job. The safety-sensitive nature of the job in question does not change this analysis according to the EEOC.

Instead, the EEOC’s counsel suggested conducting an individual analysis for each employee who is identified as an alcoholic. Instead of mandating termination for an alcoholic who consumes alcohol off the job, the employer would look at the employee’s particular circumstances and their job history to determine appropriate rules moving forward. The employer could not rely on a blanket assumption that any alcoholic who consumes alcohol at any time constitutes a direct threat to himself or to coworkers.

If alcoholic employees cannot be treated differently than non-alcoholic ones, this calls into question employers’ ability to require special testing after treatment and return to work. The same analysis would hold true for recovering drug abusers. While the employer could mandate such testing if applied after an individual analysis, it could not automatically trigger such measures based on a positive test result and substance abuse treatment.

The EEOC letter opinion responded to a hypothetical scenario, and it not the formal position of the Commission or federal courts that would hear ADA suits on this issue. However, it gives a good indication of how the EEOC will respond to charges of discrimination based on special post-treatment abstinence and testing requirements.