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Legal Clinic

Sizing Up Employment Laws

Size of the organization is not always the main factor in determining the applicability of federal -- or state -- labor laws. In addition to a review of the key federal laws, the column this month explores the impact of the ADA and FMLA on workers in treatment programs for drug or alcohol addiction.

Monday, July 14, 2008
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Question: Do most of the labor laws apply to certain size firms? What about the major laws, such as FMLA, FLSA, ADA and others? Are there labor laws that apply to all firms?

Answer:  Size generally dictates whether an employer will be subject to federal labor and employment laws but, as with everything, there are exceptions.

The Uniformed Services Employment and Reemployment Rights Act ("USERRA") applies to all employers regardless of size. Similarly, the Fair Labor Standards Act ("FLSA") does not have any expressed size requirements. In addition to applying to all hospitals, nursing homes and schools, regardless of size, the FLSA also applies to all private employers, regardless of size, who engage in interstate or foreign commerce and meet or exceed $500,000 in gross yearly sales.

Only employers with 15 or more employees are subject to the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1991 ("Title VII"). Employers with 20 or more employees are subject to the Age Discrimination in Employment Act ("ADEA"), and employers with 50 or more employees are subject to the Family and Medical Leave Act ("FMLA"). However, the FMLA applies to all public agencies and all public and private elementary and secondary schools regardless of size.

Employers should be mindful that being exempt from federal employment laws on account of size will not automatically mean the employer will also be exempt from the applicable state laws. California's anti-discrimination laws, for example, apply to employers with as few as five employees. New York's state and city human rights laws ("NYSHRL" and "NYCHRL") apply to employers with as few as four employees, and New Jersey's Law Against Discrimination ("NJAD") covers employers with as little as one employee.

So, what should all employers -- regardless of size -- take away from this? If a federal law doesn't apply to your business on account of size, the state version of it likely will. Therefore, knowing your state's employment laws is just as important as knowing the "major" federal ones.

Question: Is an employee admitted to a treatment facility for drug/alcohol addiction, covered under the ADA and FMLA? Our company policy restricts certain jobs if an employee is being treated for alcohol/drug dependency. I am thinking this needs to be changed.

Answer: As to your first question: Yes. Assuming they otherwise meet the eligibility criteria for these statutes, employees who have been or are undergoing substance-abuse treatment are covered by the ADA and the FMLA.

Notably, current drug use is not regarded as a disability under the ADA. Therefore, the ADA specifically excludes current drug users. 42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a). The ADA does, however, protect former drug addicts who have successfully completed or are participating in supervised drug-rehabilitation treatment programs, and can perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12114; 29 C.F.R. § 1630.3.

Many courts regard alcoholism, whether current or past, as an ADA-covered disability. Further, alcoholics who can perform the essential functions of the job with or without reasonable accommodation will generally qualify for ADA protection regardless of whether they are currently dependent on alcohol and regardless of whether they have been or are being treated for their dependency. See EEOC Tech. Assistance Manual § 8.4.

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Leave taken for drug or alcohol addiction treatment is covered under the FMLA as long as the treatment in question is obtained from a healthcare provider.

As to your second question -- whether your company needs to change its employment policy that prohibits employees who are being treated for alcohol/drug dependency from performing certain jobs -- the answer is maybe not.

If employees receiving alcohol or drug treatment pose a "direct threat" of serious and substantial harm to themselves or others, and if the threat cannot be reduced by a reasonable accommodation, your policy will pass ADA muster. See 42 U.S.C. § 12113(b) and (3), Chevron U.S.A v. Echazabal, 536 U.S. 73 (2002); see also EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000) (employing a business necessity standard).

Additionally, employers are generally permitted to exclude employees who are being treated for alcohol or drug dependency from performing jobs that are inherently dangerous (i.e., elite law enforcement) or that are safety sensitive (i.e., surgeon, air-traffic controller, hazardous-waste operator, atomic-reactor supervisor). Therefore, if your employer can show that the jobs in question are inherently dangerous and/or implicate significant public safety concerns, its current policy will likely be OK.

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