Questions and Answers from Webinar: Medication Assisted Treatment: Special Anti-Discrimination Issues

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1 Questins and Answers frm Webinar: Medicatin Assisted Treatment: Special Anti-Discriminatin Issues NOTE: We answered a substantial number f the questins received; hwever, we did nt answer questins that did nt directly relate t the tpics f the webinar series. We als did nt answer questins that were unclear which can easily happen in a webinar because the presenter des nt knw at what pint the questin was asked and des nt have the pprtunity t ask fr clarificatin. We aplgize, but hpe that the many questins we did answer will be helpful. Q: If a health prfessinal is fund t be diverting drugs while n the jb and admits t having a substance abuse prblem, des the emplyer vilate the ADA by firing the persn? A: N. Firing smene because they engaged in illegal activity in the wrkplace r vilated wrkplace rules des nt vilate the ADA because the terminatin was based n the underlying cnduct (diverting drugs, in this case), and nt the disability. This is true even if the underlying cnduct is caused by the disability. Mrever, peple currently engaging in the illegal use f drugs are nt prtected by the ADA when they are terminated n the basis f such use. Q: Wuld subxne treatment als be cnsidered as MAT and fall under this law? A. We understand yur questin t be: is smene wh receives MAT with subxne cnsidered an individual with a disability under these anti-discriminatin laws? The answer t this questin is that if smene is being treated with subxne fr piid addictin, and is n lnger engaging in the illegal use f drugs, then yes, that persn has a disability under these federal anti-discriminatin laws, assuming the persn can shw that his/her impairment (addictin) substantially limits, r nce limited, a majr life activity, r that thers regard him/her as having such an impairment. Q: Des the requirement f 15 emplyees in rder fr an emplyer t be cvered by the ADA refer t all emplyees r nly full-time emplyees? A. It refers t all emplyees wh wrk 20 r mre weeks in a calendar year.

2 Q: When smene underges a wrkplace drug test, can she just reprt that she is prescribed methadne withut disclsing that she is in treatment fr addictin? She culd be taking the methadne fr pain. A: The answer depends n whether the drug test is given pre-emplyment, pst-ffer, r t an emplyee. While the Federal anti-discriminatin laws permit drug testing at all f these stages (thugh check State and lcal laws that may restrict drug testing), they prhibit emplyers frm asking abut disabilities during the pre-emplyment stage. Pre-emplyment: An emplyer may cnduct drug testing t determine whether a jb applicant is using drugs, and if s whether the persn s use is legal. (Jb applicants and emplyees wh use drugs illegally are nt prtected frm jb discriminatin based n their illegal use.) S, at the pre-emplyment stage, the entity cnducting drug testing fr an emplyer culd require dcumentatin that methadne is being taken legally, but culd nt ask fr r tell the emplyer the reasn at that stage. This is because the reasn, e.g., MAT t treat piate addictin, culd reveal disability-related infrmatin the emplyer is nt permitted t ask abut befre a jb ffer. After jb ffer is made: If the drug test is given after an ffer f emplyment is made, but befre the individual begins wrking, it is legal t ask why methadne is being prescribed, prvided that all individuals at this stage are asked fr the reasn(s) they are prescribed medicatins. Emplyers may cnditin jb ffers n individuals successfully passing medical exams and answering medical inquiries, but they may nt use the infrmatin they may btain abut an individual s disability t discriminate against him r her. Current emplyees: If the drug test is given t an emplyee, it is legal t ask why methadne is being prescribed if there is a business necessity fr that infrmatin. Als recall that the ADA has cnfidentiality prvisins that limit the redisclsure f disability-related infrmatin an emplyer may btain abut a jb applicant r emplyee. Q: Are yu saying that chrnic alchlics are prtected in the wrkplace? A: Yes, peple wh currently are abusing alchl are prtected by the ADA, assuming they are qualified and able t perfrm their jb and their alchlism substantially limits r nce limited ne r mre majr life activities, r they are regarded as having such an impairment. But remember that it des nt vilate the ADA t terminate smene fr vilating wrkplace rules r fr perfrmance prblems. Q: Recently, the medical directr at a state perated mental health hspital tld me that it was his "prergative" whether t allw MAT patients int the hspital. Is that true? A: N. A state-perated mental health hspital is gverned by Title II f the ADA, and if it receives federal funding, als by the Rehabilitatin Act. It wuld vilate bth f these laws t have a flat plicy f nt admitting patients merely because they participate in MAT. On the ther hand, the mental health hspital wuld need t crdinate with the patient s OTP t arrange fr btaining the methadne (r ther medicatin used in MAT), securing it at the hspital, making sure it did nt interact with ther prescribed medicatins, and mnitring the patient s care. 2

3 Q: Are nursing bards able t deny nursing licenses t peple in MAT? A: An utright rule that disqualifies nurses in MAT frm being licensed wuld vilate the ADA. Applicants fr licenses must be cnsidered individually. Q: Hw d Federal anti-discriminatin laws apply t Cmmercial Drivers Licenses (CDL) licenses issued by the U.S. Department f Transprtatin (DOT)? I was tld that peple currently in treatment with an OTP (piid treatment prgram) cannt have a valid CDL license. A: We answered this questin later in the webinar. In shrt, United States Department f Transprtatin regulatins d prhibit the issuance f CDLs fr interstate driving t individuals taking prescriptin methadne r any narctic, r ther habit frming drug. Q: Des the DOT als exclude thse wh take methadne fr pain frm btaining a CDL? A: The DOT regulatins and interpretive guidance d appear t disqualify frm CDLs anyne wh is prescribed methadne, regardless f the reasn. The DOT has issued the fllwing guidance in respnse t the questin, Is a driver wh is taking prescriptin methadne qualified t drive a CMV in interstate cmmerce? Methadne is a habit-frming narctic which can prduce drug dependence and is nt an allwable drug fr peratrs f CMVs [cmmercial mtr vehicles]. As yu can see, therefre, the exclusin applies regardless f the reasn fr the methadne prescriptin. Q: Why dn t the DOT regulatins prhibiting peple in methadne treatment frm getting CDLs vilate the Federal anti-discriminatin laws cvered in this webinar? A: The rules gverning cnflicts between different federal laws and regulatins are cmplicated, but generally, the mre particular law and mre recent law gverns. Q: D recvery hmes have t cmply with the Fair Husing Act even if they are nt licensed? A: Yes. They have t cmply with the Fair Husing Act because they are a dwelling, as that term is defined in the law. Their lack f licensure des nt change the utcme. Q: D the Federal anti-discriminatin laws have an exceptin fr faith-based grup hmes? A. Faith-based grup hmes and ther religius rganizatins are nt exempt frm the prvisins f the Fair Husing Act that prhibit disability-based discriminatin. Religius rganizatins may limit the sale, rental r ccupancy f dwellings they wn r perate fr ther than a cmmercial purpse t ther peple f the same religin, r give preferences t peple f the same religin, but they may nt discriminate based n ther prtected categries, including disability. 3

4 Q: Can State clleges disallw a student frm entering a chemical dependency cunseling prgram while n MAT? A: We read yur questin t mean: may a student be denied admissin t a curse f study t becme a cunselr because f his/her participatin in MAT? The answer is n. Q: If Federal laws prhibit discriminatin against peple in recvery, then hw can peple with drug cnvictins be excluded frm fd stamps? A: The Federal law disqualifying peple frm fd stamps because f drug-related cnvictins excludes peple because f the criminal cnvictin, and nt because f the underlying disability. In fact, sme individuals wh have cnvictins fr pssessin r sale f drugs may nt have an underlying addictin, thugh many d. Als nte that nt all states have adpted this ban. T check yur state s law, yu can cnsult the Legal Actin Center s Radblcks t Reentry reprt at Q: The New Jersey Divisin f Yuth and Family Services and Drug Curts always mandate peple t stp MAT. Is that legal? N. It wuld vilate the ADA fr any gvernment agency r curt t require peple under their jurisdictin t end their participatin in MAT. Such actins als vilate the Rehabilitatin Act if the agency (r curt) is federally assisted. Q: Our Drug Curt judge wants t knw if anyne has lked at whether a Drug Curt can exclude peple because f participatin in MAT? A: Excluding peple frm participatin in a Drug Curt because they participate in MAT vilates Federal anti-discriminatin laws fr the same reasn as requiring them t end their participatin in MAT (see answer t the prir questin). Q: Fr thse wh are cming ut f prisn and int a re-entry scenari and are n parle, the clinical recmmendatin is ften t transitin the persn nt Methadne r Subxne, but parle may say n. Is this legal? A: N. While this scenari is slightly different frm the ne discussed in the prir tw questins, because it des nt invlve mandating smene t stp MAT, but rather, preventing them frm enrlling in MAT, it vilates Federal anti-discriminatin laws fr the same reasns. Q: We have clients wh end up in cunty jail. One f ur cunties allws us t cntinue t medicate them and anther des nt, thrwing the client int immediate withdrawal. Is there relief fr that client? A: Frcing smene wh has been arrested, but nt yet cnvicted (a detainee ), t end participatin in MAT raises serius Cnstitutinal questins, and sme curts have fund it t be cruel and unusual punishment in vilatin f the Eighth Amendment. In prisns r in jails where individuals have already been cnvicted, curts have applied less stringent standards fr defining cruel and unusual punishment. In either setting, hwever, the failure t prvide 4

5 medically supervised detxificatin raises even strnger Cnstitutinal issues. The American Sciety f Addictin Medicine issued a plicy statement in 2002 n Access t Apprpriate Detxificatin Services fr Persns Incarcerated in Prisns and Jails that might prve helpful. Q: Are nt these state DUI laws that make it illegal "per se" t drive with methadne in yur system, regardless f whether it is impairing r intxicating, discriminatry under federal law? A: We are nt aware f any legal challenges that have yet been raised regarding this type f law, but it is pssible that a curt might find it t vilate the ADA. Q: What can clients invlved in child abuse and neglect prceedings d if the curt tells them t stp MAT, r they cannt have their children back? A: As nted in the webinar, it vilates Federal anti-discriminatin laws fr a curt t require a parent t stp participating in MAT as a cnditin f getting their children back. T learn hw t peple can exercise their rights in such a situatin, please read the Legal Actin Center s publicatin, Educating Curts, Other Gvernment Agencies & Emplyers Abut Methadne, which has useful suggestins fr hw t address discriminatin. It is available fr free n the Center s website at Yu may wish t print it and ask yur client s attrney t prvide it t the judge. 5