As an alternative to termination, employers faced with employee drug or alcohol policy violations sometimes want to give that person a second chance. Typically, this process involves a commitment by the employee to seek treatment or counseling for substance abuse, as well as a promise not to engage in further abuse, often backed up by random testing.

For employees whose substance abuse is tied to alcoholism or those in recovery from illegal drug use, the Americans with Disabilities Act extends protections against discrimination in addition to accommodation obligations. In some cases, employees have contended that the ADA does not permit employers to impose special conditions on them such as a “last chance” agreement that contains terms and conditions of employment not required of other employees.

Both federal courts and the EEOC have rejected these claims, finding that reasonable last chance agreements are consistent with employees' rights under the ADA. Even though alcoholism and recovering drug addiction are ADA disabilities, the agreements are imposed as a result of employee misconduct, and not due to the disability. The employee always has the choice not to sign the agreement, knowing that the consequence is disciplinary action that is the same as that applied to any employee who violates the drug and alcohol policy.

Employers using last chance agreements should understand that they do not substitute for the obligation under the ADA to provide reasonable accommodations. If the employer extends a second chance, it should be prepared to respond to requests for time off to attend rehabilitation, 12-step programs, or the like.