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Discriminations Laws and Substance Abuse: Rehab Act of 1973, ADA and FMLA

Written by Jonathan Strum

& Medically Reviewed by Jenni Jacobsen, LSW

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Last Updated - 8/3/2022

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Updated 08/03/2022

There are certain laws, such as the Americans with Disabilities Act, that allow employees to seek substance abuse treatment without fear of losing their employment.

When someone is struggling with addiction, their substance use may begin interfering with their career. Studies show millions of Americans go to work under the influence; some even use drugs or alcohol while on the clock:

  • An analysis of over 10 million workplace drug tests found that 5.1% of tests came back positive for the presence of drugs in 2018.
  • A 2006 study found that 14.4% of U.S. adult employees used illicit drugs, with 3.1% using illicit drugs while at work.
  • A similar study found that around 7.1% of employees drink alcohol during the workday, while 1.8% drink before work and 9.2% work while hungover.

For many people with addiction, substance use is a large part of day-to-day life. The nature of dependence, addiction, and withdrawal means avoiding substances for an eight-hour shift can often seem impossible. Fortunately, there are laws in place that allow workers to find the life-saving help they need without losing their employment.

Protecting Employees From Discrimination Against Addiction

Three key laws prevent discrimination and allow workers to seek help without retaliation. These work in several different ways, such as:

  • Limiting an employer’s ability to investigate workers or retaliate for seeking treatment
  • Preventing employers from refusing employment based on a history of substance use or rehab
  • Protecting employees’ jobs as they take unpaid leave for treatment

It’s important to note that an employee may not be protected by some laws if an employer has clear, non-discriminatory policies in place that allow them to take action against employee substance use. Additionally, at-work substance use may not be protected. The following provides an overview of these three laws: the Rehabilitation Act of 1973, ADA and FMLA.

Rehab Act of 1973

The Rehabilitation Act of 1973 was created to protect employees of organizations that receive federal funding, including hospitals, mental health facilities, human service programs and many others. Specifically, it prevents employers from denying qualified employees with disabilities access to benefits and other workplace services. Drug addiction is included as a type of disability. Employers must also make reasonable accommodations for people with disabilities.

Essentially, this means a federally-funded organization cannot discriminate against someone based on a history of substance use or rehabilitation. Regarding addiction, accommodation may mean offering treatment to someone who is struggling with substance use.

Americans with Disabilities Act (ADA)

The ADA alllows employers to enforce a drug-free workplace, but it also protects employees with disabilities like an addiction. Employers cannot discriminate against employees based on a history of drug use or past or current rehabilitation. However, the ADA does not apply to current illicit drug use. Additionally, employees should be given reasonable accommodation — in this case, the ability to have a modified work schedule or a leave of absence to seek treatment.

How Is the ADA Different From the Rehab Act of 1973?

The ADA is a much broader law that applies to private employers with more than 15 employees. Meanwhile, the Rehab Act of 1973 applies specifically to federally-funded organizations. Essentially, the ADA is a step up from the Rehab Act of 1973. Both laws view addiction as a disability.

Family Medical Leave Act (FMLA)

FMLA allows employees to take up to 12 weeks of unpaid leave for a variety of reasons, including addiction treatment. To be eligible, the person must be employed for at least 12 nonconsecutive months and work for at least 1,250 hours in the year before taking leave. The employer must have 50 or more employees located within 75 miles to fall under FMLA protection.

Further, the employer cannot retaliate against an employee for taking FMLA leave. However, in some circumstances, employees may lose their job if their employee has a clear, established drug-free policy in place.

How To Approach Time Off for Rehab

It may be intimidating, but the best way to take time off work for rehab under FMLA is to have an open, honest conversation with your human resources department. They can help you process the necessary paperwork. You’ll want to explain how going to rehab can make you a better employee and benefit the organization. It can also be helpful to bring a referral note from your doctor that recommends addiction treatment. Regardless, your decision to seek treatment can indicate to your employer a firm commitment to recovery.

Going to rehab and keeping your job is possible. At The Recovery Village at Baptist Health, our addiction specialists can help you navigate the rehab process and life after treatments. Our case managers offer resources, guidance and support well beyond your time here.

It should also be noted that in some cases, using FMLA leave may not be necessary. People with milder addictions may benefit from outpatient addiction treatment, with appointments scheduled around their work hours. While outpatient rehab is not suited for everyone, it can help some people keep their treatment separate from their work obligations.

Are you or a loved one struggling with addiction?

Our Recovery Advocates are available 24/7 to help.

Choosing the Right Drug Rehab Facility

The Recovery Village at Baptist Health provides a full continuum of care and can customize programs to work with each client’s specific needs. We can create flexible treatment plans that ensure that time spent away from work is kept to a minimum, as well as continue treatment before or after work hours.

To learn more about how our individualized programs can work well for your needs, contact one of our helpful representatives today. We’re here to help you take the first step toward a happier, healthier drug-free future.


What is the Rehab Act of 1973?

This act was designed to prevent federally-funded employers from discriminating based on disabilities, including addiction.

What did the Rehab Act of 1973 do?

It allowed employees with disabilities to have certain accommodations and avoid discrimination, such as loss of employment opportunities and benefits due to a disability.

What is the Americans With Disabilities Act?

The ADA broadened the scope of the Rehab Act of 1973, making it so employers with more than 15 employees cannot discriminate based on disabilities.

Can you use FMLA for substance abuse?

While FMLA can be used to take time off for addiction treatment, it cannot be used to take time off to deal with the effects of current substance use.

View Sources

National Drug-Free Workplace Alliance. “Industry Statistics.” Accessed November 16, 2020.

Frone, Michael. “Prevalence and distribution of illicit drug use in the workforce and in the workplace: Findings and implications from a U.S. National survey.” Journal of Applied Psychology, August 2006. Accessed November 16, 2020.

Frone, Michael. “Prevalence and distribution of alcohol use and impairment in the workplace: a U.S. national survey.” Journal of Studies on Alcohol, January 2006. Accessed November 16, 2020.

Substance Abuse and Mental Health Services Administration. “Federal Laws and Regulations.” August 4, 2020. Accessed November 16, 2020.

Legal Information Institute. “29 CFR § 825.119 – Leave for treatment of substance abuse.” Accessed November 16, 2020.

U.S. Department of Health and Human Services. “What Is Section 504?” June 2006. Accessed November 16, 2020.

Miller, Norman; et al. “Rehabilitation Acts.” Principles of Addiction and the Law, 2010. Accessed November 16, 2020.

United States Commission on Civil Rights. “Chapter 4 Substance Abuse under the ADA.” Accessed November 16, 2020.

U.S. Department of Labor. “Fact Sheet #28: The Family and Medical Leave Act.” 2012. Accessed November 16, 2020.