Did You Get a DWI or Other Drug Offense? Your Right to Get Treatment Without Losing Your Job

An arrest for drunk or drugged driving or possession of narcotics creates several problems in someone’s life. The first is the criminal case. The second, and the one that causes the most stress, is the effect on their job.

Fear of losing their paycheck keeps a lot of people from getting help for a drinking or drug problem, even when they know they need it and want it. That fear is understandable, but there are some reasons why you are better off proactively seeking help. Federal law gives many workers real protection when they seek treatment. Those protections have limits, and timing matters.

Here is what every worker facing a DWI or drug charge should understand, no matter which state they live in.

The Family and Medical Leave Act (FMLA) Protects Time off for Treatment

The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period for a medical condition, and substance use disorder can qualify.

Here are some basic guidelines to be eligible:

• Your employer must have 50 or more employees
• You have worked there at least 12 months
• You have logged at least 1,250 hours in the past year.

Your employer must keep your group health coverage in place during leave. Leave can also be taken intermittently or on a reduced schedule – which fits well with the outpatient treatment schedule many people who are employed pursue.

There is an important guideline here about what the FMLA is for: it covers treatment, not the drinking or drug use itself. The leave must be for treatment from a health care provider or on a provider’s referral. Absences caused by substance use do not qualify.

An employer cannot retaliate against you for taking FMLA leave for treatment. FMLA also lets you take leave to care for a spouse, child, or parent who is in treatment.

The Americans with Disabilities Act (ADA) Protects Recovery from Substance Addiction

The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. It can protect people with alcoholism and people in recovery from drug addiction who are no longer using illegal drugs. That protection may include reasonable accommodations, such as a schedule change or time off for treatment.

Just like the FMLA, the ADA does not protect current illegal drug use. A positive drug test can be evidence of current use, and employers can act on it. At least one court has found that drug use in the weeks before someone entered treatment still counted as current use.

Alcohol is treated a little differently. Alcoholism, known clinically as alcohol use disorder,  can be a disability, but the ADA does not allow drinking on the job or excuse poor performance. Employers can hold workers with alcoholism to the same standards as everyone else.

This is why timing matters. A person who asks for help before a failed test, a workplace incident, or a disciplinary meeting is usually in a much stronger position than someone who waits.

What These Laws Do Not Do

These protections are real, but they do not shield you from every consequence.

• Employers can enforce drug and alcohol policies that are applied fairly and consistently. Taking FMLA leave does not erase those policies.
• Leave laws do not prevent discipline for breaking workplace rules.
• Safety-sensitive workers, such as commercial drivers and pilots, face additional federal rules. Licensed professionals may have reporting duties to a licensing board.
• Your handbook may require you to report an arrest. Read it carefully, and talk with your defense attorney before you say anything to your employer.

Some States Offer More Protection

Consider the federal laws like the floor, and many states have built on it. California, for example, has its own family leave law that covers employers with as few as five employees.

California Labor Code Section 1025 also requires private employers with 25 or more employees to reasonably accommodate workers who voluntarily enter a rehabilitation program and to make reasonable efforts to keep that participation private.

Check your own state’s leave and disability laws, or ask an employment attorney, before assuming federal law is all you have.

Treatment Can Help Your Case

Getting into treatment early is not only about your job. Judges and prosecutors often see voluntary treatment as a sign that a person is taking the problem seriously. Steady employment can also support a request for a lighter sentence or an alternative to jail.

Keep in mind that a court-ordered DWI class and clinical treatment are not the same thing. The class satisfies a legal requirement. Treatment addresses the drinking or drug use behind the arrest, which lowers the chance of another one.

Outpatient programs make this easier. Many offer evening or weekend sessions, so people can get help without missing work.

What To Do After an Arrest

1. Read your employee handbook, especially the drug and alcohol policy and any rules about reporting an arrest.
2. Find out whether your employer offers an Employee Assistance Program (EAP).
3. Talk with your defense attorney before disclosing anything to your employer.
4. Ask a treatment provider about evening or weekend programs and what paperwork you need for FMLA leave.
5. If you face discipline or believe your rights were violated, consult an employment attorney.

The worst move is usually to wait. Help is available, and the law gives many workers more room to get it than they realize.

This article is for general information only and is not legal advice.

About the Author

Scott H. Silverman is a best-selling author whose latest book is You’re Not God, That Job is Taken. He is also a nationally recognized interventionist and addiction recovery expert based in San Diego, California. With decades of experience helping individuals and families navigate the path to recovery, Scott is a passionate advocate for accessible, effective addiction treatment. He is affiliated with Confidential Recovery, an outpatient treatment center in San Diego that provides effective drug treatment for clients facing legal problems.