The NCSL Blog

13

By Tammy Jo Hill

When President George H.W. Bush signed the Americans with Disabilities Act on July 26, 1990, it became the most sweeping piece of civil rights legislation ever enacted for people with disabilities.

The landmark law banned discrimination on the basis of disability in employment, places of public accommodation, public services, transportation and telecommunications. People are covered under the ADA if:

  • They have a physical or mental impairment including depressive disorders, substance use disorders or mental disorders like schizophrenia, that substantially limits one or more major life activities.
  • They have a history of an impairment that substantially limited one or more major life activities.
  • They are regarded as having such an impairment.

Thirty years later, the ADA's legacy continues, with the anniversary offering a chance to celebrate and reflect on the past, present, and future of disability protections and equality.

Protections outlined in Title I of the ADA can apply to people with addiction to alcohol and people in recovery from opioid and other substance use disorders. An employee or job applicant who is currently engaging in casual use of illicit drugs or is addicted, will not qualify as an individual with a disability.

However, people whose past includes addiction to alcohol or illicit drugs are protected from being fired, a refusal to hire or refusal to promote due to an impairment that affects the brain and neurological functions.

Employees should also receive protection from discrimination when recovering from alcoholism or illicit drug use, and employers should be careful about regarding someone as impaired. If an employee or job applicant identifies as formerly addicted to illicit drugs, they can qualify for protections if they:

  • Have been successfully rehabilitated and are no longer engaged in illegal use of drugs.
  • Are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs.
  • Have been regarded, erroneously, as illegally using drugs.  

In these instances, an employer is permitted to ensure the workplace is free from the use of alcohol and illegal drugs, while also protecting the employer from any obligation to provide accommodations that may create difficulty or expense and undue hardship to the business.  

In 2008, the ADA Amendments Act (ADAAA) broadened the definition of disability to provide legal protections against employment discrimination for people with a history of a psychiatric disability or for those regarded as having a psychiatric disability.

This can include anyone with an anxiety disorder, depression, attention-deficit/hyperactivity disorder, bipolar disorder or schizophrenia. The ADAAA provides individuals with a psychiatric disorder with a right to privacy, except when asking for accommodations from an employer, and the right to job accommodations that don’t provide undue hardship to an employer.

States have taken actions to improve services and supports for those covered under this federal law.

For instance, many states have taken action to improve access to, and the quality of, recovery housing for individuals experiencing a substance-use disorder. At least 10 states, according to the National Council for Behavioral Health, have enacted legislation to improve the quality of recovery housing, and other states have introduced legislation or regulation.

Florida created a voluntary recovery residence certification program based on National Alliance for Recovery Residence standards and requires homes to have a “certified recovery residence administrator” and requires a newly-created certification for the administrator. New Jersey in 2017 required recovery homes to be licensed by the Department of Consumer Affairs, meet municipal codes for single-family homes and have fewer than 10 residents, including a resident staff person.

Knowing 1 in 10 Oregonians are currently experiencing a drug use disorder, ballot measure 110 passed on Election Day, making Oregon the first state to decriminalize the possession of heroin, methamphetamine, LSD, oxycodone and other hard drugs.

This measure, effective 30 days after the election, will make it possible for individuals who are found with personal-use amounts of these drugs to receive a $100 fine or to enroll in a health assessment provided by an addiction treatment professional. According to the Drug Policy Alliance, “the idea behind this groundbreaking effort is simple; people suffering from addiction need help,” and this initiative seeks to prioritize that help over criminal punishment.

Other states have sought to improve health outcomes by improving parity of insurance coverage between services for physical and mental health.

  • Colorado’s HB18-1357 created the Office of the Ombudsman within the Executive Director’s Office at the Colorado Department of Human Services. This fully independent office assists Coloradans in accessing behavioral health care services and tracks complaints of violations of state and federal behavioral health parity laws.
  • Wyoming’s HB19-211 requires insurance plans regulated by the state to comply with federal mental health parity laws established in 2008.

Tammy Jo Hill is a policy specialist in NCSL’s Health Program.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.