Under the California Labor Code, if you have 25 or more employees, you must reasonably accommodate any employee who volunteers to enter an alcohol or drug rehabilitation program, if the reasonable accommodation does not impose an undue hardship on you.2 Reasonable accommodation includes time off with or without pay and adjusting working hours. You need not provide time off with pay. An employee who is absent for alcohol or drug rehabilitation can use sick leave pay to which they’re entitled.3

Employees can file a complaint with the Labor Commissioner if they believe their employer denied reasonable accommodation.4 You must take reasonable measures to safeguard the employee’s privacy about the fact that they entered alcohol or drug rehabilitation.5 You or your representative cannot misrepresent the performance record of an employee who voluntarily left to enter rehabilitation or prevent the employee from getting another job.6

Even smaller employers may need to consider offering time off for drug and alcohol rehabilitation as a reasonable accommodation under the ADA and FEHA. See Reasonable Accommodation of Disabilities.

This law does not prohibit an employer from refusing to hire or discharging an employee who, because of their current drug or alcohol use, is unable to perform their duties or endangers the health and safety of others.

Even if you are not required to provide rehabilitation, you should consider offering this option rather than discharging an employee. Programs designed to assist employees and deter drug use are good policy. They are also more likely to be looked upon favorably by juries in wrongful termination cases than programs aimed at punishing employees with admitted drug or alcohol problems.

Employee Assistance Programs (EAPs) and Drug and Alcohol Rehabilitation

Many organizations developed EAPs to provide treatment and counseling for employees’ drug- and alcohol-related problems and to address financial, emotional and other personal problems related to these areas. EAPs enable you to address the issue of drugs in the workplace in a nonthreatening and cost-effective manner. Although you may be reluctant to incur the cost of instituting an EAP, many organizations faced with an extensive drug problem are likely already paying a high price in absenteeism, accidents, workers’ compensation claims, poor performance and medical costs. Successful treatment under an EAP can considerably reduce these costs. In addition, implementing an EAP can improve employee morale by demonstrating to employees the humane manner in which you address the issue.

Termination for Violating Drug Testing Agreement

In Gosvener v. Coastal Corp., a California Court of Appeal refused an employee’s claim that he was wrongfully terminated when he failed to comply with the terms of a drug treatment plan to which he had agreed. After the employee divulged a drug and alcohol problem, the employer paid for treatment at a private clinic, temporarily assigned the employee to a less stressful position at full pay and entered into a rehabilitation and treatment agreement with the employee. The employer terminated the employee when he allowed unsafe work to be performed, appeared at work under the influence of alcohol and/or drugs, missed work on several occasions and failed to attend required therapy sessions.7

1. Gov. Code sec. 12954(a)

2. Lab. Code sec. 1025