Nothing in this title shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results. Thus, Title I of the ADA protects people substantially limited by alcoholism to the same extent that it protects persons with other disabilities. Additionally, a person who illegally used drugs in the past may be an individual with a disability under the law. However, regardless of performance, current illegal drug users find no haven in the ADA's protections; they are neither "qualified" nor "disabled" under the law. And use of alcohol or other drugs on the job can be restricted by employers.

The ADA's extensive discussion of substance abuse and the exclusion of current illegal drug users reflects the difficulty of rectifying distinct conceptualizations of drug abuse in making public policy. This difficulty in deciding whether drug abuse is a criminal justice problem, a medical or public health problem, or social issue is nothing new. For example, although the original Rehabilitation Act regulations defined illegal drug abuse as a protected disability, the issue met with considerable controversy. The 1978 Amendments to the Rehabilitation Act qualified the original regulations, protecting current drug and alcohol users only in the absence of poor work performance or threat to the property or safety of others. (The Rehabilitation Act Amendments of 1992 adopted the ADA's approach to coverage of current illegal users of drugs.)

The ADA reveals Congress' hope that employers will give drug abusers opportunities for rehabilitation. The law seeks to prevent the punishment of those who sought treatment in the past or are continuing to receive treatment, and no longer use drugs. The ADA states that it should not be construed:

to exclude as a qualified individual with a disability an individual who:

Unfortunately, this language raises questions even as it attempts to answer them. For example, how long must an individual not take a drug to be considered successfully rehabilitated?

OTA has found no discussion of the impact of the ADA's substance abuse provisions on people with psychiatric disabilities. Data clearly have demonstrated that people with mental disorders often abuse alcohol and drugs. For example, information from a national survey indicated that nearly one-third of those with a diagnosable mental disorder will abuse alcohol or illegal drugs at some time in their lives. More severe diagnoses are associated with higher comorbidity. Nearly half of those with schizophrenia will abuse or be dependent on alcohol or other drugs, and over 60 percent of people with manic depression will abuse or become dependent on alcohol, other drugs, or both.

The fact that the ADA protects people with mental disorders but excludes those currently abusing illegal drugs also may raise difficulties. Analysts with the EEOC hold that distinctions between psychiatric disabilities and substance abuse can be dealt with in a fairly clean fashion:

If an individual is an alcoholic, then she could be protected under the ADA both for the psychiatric disability and the alcoholism. If the individual is a current illegal user of drugs, then she could be covered by the ADA for the psychiatric disability but not for the current illegal drug use.. . In other words, if an employer refused a reasonable accommodation for the psychiatric disability, the individual has grounds to file an ADA charge.

Given the high co-morbidity between mental disorders and substance abuse, employer actions--permitted by the ADA--to restrict the use of alcohol or drugs may disparately affect people with psychiatric disabilities. Many people with psychiatric disabilities may refrain from seeking the protection of the ADA for fear of revealing a drug abuse problem. Another concern emerges from drug testing in the workplace. Tests for illegal drugs can register a false positive when an individual is taking some medications for mental disorders (as well as other conditions, such as epilepsy). At best, applicants or employees will be put in the position of disclosing their disability, perhaps against their desire.

P.R. Mastroianni, Assistant Legal Counsel, U.S. Equal Employment Opportunity Commission, Washington, DC, personal communication, Oct. 14, 1993; R.K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy (Philadelphia, PA: Temple University Press, 1984); R.J. Henderson, Jr., "Addiction As A Disability: The Protection of Alcoholics and Drug Addicts Under the Americans with Disabilities Act of 1990," Vanderbilt Law Review 44:713-740, 1991; N.L. Jones, "The Alcohol and Drug Provisions of the ADA: Implications for Employers and Employees," Consulting Psychology Journal: Practice and Research 45:37-45, 1993; L.K. Haggard, "Reasonable Accommodation of Individuals with Mental Disabilities and Psychoactive Substance Use Disorders Under Title I of the Americans with Disabilities Act," Journal of Urban and Contemporary Law 43:343-390, 1993; W.F. Banta, and F. Tennant, Jr., Complete Handbook for Combating Substance Abuse in the Workplace: Medical Facts, Legal Issues, and Practical Solutions, 1989; U.S. Congress, Office of Technology Assessment, The Biology of Mental Disorders, OTA- BA-538 (Washington, DC: U.S. Government Printing Office, September 1992).