However, while current users are not protected, recovered drug and alcohol abusers may be covered under certain circumstances. The ADA and FEHA protect people who meet all of the following criteria:

• Formerly abused alcohol or illegal drugs;
• Successfully rehabilitated themselves, either through a supervised rehabilitation program or through their own program; and
• No longer use illegal drugs.

This protection extends to individuals participating in a drug or alcohol rehabilitation program. Although individuals with a record of drug use who have successfully completed a rehabilitation program and no longer use illegal drugs may be protected, unacceptable addiction-related misconduct that violates company policy or performance standards isn't protected under the ADA or FEHA.2

Questions about past addiction to illegal drugs or participation in a rehabilitation program are considered "disability-related inquiries."3 An employer may only make disability-related inquiries if they're job-related and consistent with business necessity. See Disability-Related Inquiries for more information.

Under the ADA or FEHA, you can conduct drug tests to accurately identify illegal drugs even before a job offer is made. For more information, see When Drug Testing May be Permitted.

In addition, adopting and administering reasonable policies to prevent drug use, possession or sale in the workplace doesn't violate the ADA or FEHA. See ”Drug-Free Workplace Policy Guidelines” in Drug-Free Workplace Policies.

While recreational cannabis use is legal in California, employers may continue to prohibit it in the workplace. Though legal under state law, cannabis is not afforded the same legal status of other legal prescription drugs because it is still an illegal drug under federal law - and FEHA doesn't require employers to accommodate the use of illegal drugs.4 For more information, see Adult Use of Marijuana Act.

1. Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995), cert. denied, 116 S.Ct. 711 (1996)