Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.

Wednesday, March 19, 2008

Is Internet addiction a protected disability?

There is no doubt that addiction is a protected disability under the ADA and Ohio's parallel law. The Department of Labor provides the following helpful summary of the impact of the ADA on employees who have problems with drugs and alcohol:

  • Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.
  • The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements).
  • Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.
  • Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.
  • Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.)
  • Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation.
  • A person who is an alcoholic may be an "individual with a disability" under the ADA.
  • Employers may discipline, discharge or deny employment to alcoholics whose use of alcohol impairs job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
  • Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
  • Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to alcohol and drug use in the workplace.
  • The ADA does not protect casual drug users; but individuals with a record of addiction, or who are erroneously perceived as being addicts, would be covered by the guidelines.

The bottom line is that the ADA does not protect the impaired, but does protect non-impaired addicts, those who are perceived as addicts, and those who have a record of past addiction. In other words, an employer can terminate an employee who is impaired on the job or tests positive for drugs or alcohol on the job, but cannot terminate someone who is in rehab, for example.

What about other addictions? From Engadget Mobile comes this story about email addiction:

Considering the plethora of facilities that have opened just in the past few years to deal solely with individuals that have become undoubtedly addicted to video games, the internet and all things Hello Kitty (we jest, we jest), we're not surprised one iota to hear that uncontrollably texting / e-mailing could soon become "classified as an official brain illness." According to a writeup in the latest American Journal of Psychiatry, internet addiction is a common ailment "that should be added to psychiatry's official guidebook of mental disorders." More specifically, Dr. Jerald Block, a psychiatrist at the Oregon Health and Science University in Portland, even goes so far as to argue that said phenomenon (neglecting basic drives to spend more time online) be "included in the [next edition of] Diagnostic and Statistical Manual of Mental Disorders, psychiatry's official dictionary of mental illnesses."

Here's a preview of what might be coming for employers:

  • Employer to employee, "Our IT department tells us you've spent 20 hour a week for the past 3 months surfing the Internet on non-work related sites. We're going to have to let you go.
  • Employee responds: "But I'm addicted to the Internet."
  • Employer: "Sorry, your non-work use of the Internet is stealing."
  • Employee's lawyer: "We're suing you for disability discrimination."

Likelihood of success aside, this scenario is not all that improbable to occur. Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.