Q: Can I pursue litigation a a previous employer if they let me go because I am a recovering drug addict?

A: Hello,

My name is Dash. I'm a PA attorney with Equal Justice Solutions, a public interest law firm that represents employees.

I'm sorry to hear you have struggled with your addiction. It sounds like you are doing better, and we hope this issue at work isn't too disruptive.

I hesitate to give you specific information, because I don’t have all the facts. However, you are welcome to reach out to our firm for a free consultation: https://equaljusticesolutions.org/employment-discrimination-and-retaliation

With that disclaimer, here is some general information:

The Americans with Disabilities Act (ADA) prohibits discrimination because of disability. It also prohibits retaliation because of complaining about disability discrimination or asking for “reasonable accommodations.” Other laws, such as the Pennsylvania Human Relations Act and Section 1557 of the ACA provide similar protections.

The general rule is that the ADA protects employees from discrimination because they previously struggled with addiction or are seeking treatment for addiction. By contrast, someone who actively uses illegal drugs is not considered to be “disabled” under the ADA.

Therefore, it’s usually illegal for a company to discriminate against someone simply because they used to struggle with addiction, or are currently in recovery. It's not illegal for them to fire someone for using illegal drugs or coming to work intoxicated.

Now, just because something is illegal, doesn’t mean an employee will be able to prove it. A common defense in disability litigation is that the employer can’t have discriminated because they didn’t know about the disability. Putting a company on notice of a disability (and need for accommodations) in a way that both triggers the company’s legal obligations in an obvious way, while also not escalating the situation is a delicate art. Ideally, the notice is in writing, and in a polite, respectful tone. It's often a good idea to consult a lawyer for specifics.

Additionally, employers often try to build a fake “paper trail” of seemingly legitimate write-ups to make it look like they weren’t discriminating. This is called "pre-text." Adequate documentation is often critical to proving pretext.

Note, just because an employee may have done something wrong, doesn't mean they weren't discriminated against. For example, in Summa v. Hofstra University, Lauren Summa complained to her employer about discrimination. Shortly after complaining, the employer launched an investigation into her, and fired her because she incorrectly reported her timesheets. Although the time sheets were inaccurate, the court still held that the employer could be liable for discrimination and retaliation, because it was possible the employer only did the investigation after Ms. Summa reported, and no other employees were disciplined.

Finally, you mentioned another thing in your question—accessing employee health records. The general rule is the law prohibits employers on going on fishing expeditions in employee medical records. While they can ask for documentation, such as doctor notes, to corroborate requests for accommodation, they are not (usually) entitled to all medical records.

Further, if an employer is a healthcare provider and accesses an employee’s records who is also a patient, they may be in violation of HIPPA, as well as state laws that protect privacy. If they take money from the government, this may constitute a violation of the False Claims Act, which offers whistleblowers large financial rewards.

This is a lot, but hopefully it provides some helpful general information. If you feel you need more information, please reach out.

Sending prayers and good thoughts for your continued recovery.

Best,

Dash