Someone on your team has been missing Monday mornings, and last week a client mentioned something. You have a suspicion you would rather not have. The instinct at this point is to move fast and quietly — a discreet conversation, a swift exit, problem contained. That instinct is understandable, and in employment law terms it is close to the worst available option. The protections here work in almost exactly the opposite direction from what most managers assume, and knowing which way round they run changes what you should do on the first day rather than the thirtieth. None of this is legal advice, and anything consequential deserves a call to employment counsel.
Know Where You Would Send Someone Before You Need To
Most managers improvise this at the worst possible moment, which is why it goes badly. The useful preparation takes about twenty minutes and happens on an ordinary week when nothing is wrong.
Find out what your health plan actually covers for behavioral health, what your employee assistance program includes if you have one, and what treatment options exist within a reasonable distance of your workplace. If your business sits in the Los Alamitos area, that means knowing what treatment programs serve Los Alamitos and the surrounding Orange County communities — a useful exercise anywhere, but particularly here, where a four-square-mile city at the junction of the 605, 405, and 22 draws its workforce from both sides of the county line and “local” can mean three different directions.
Write down what you find. A manager who can say “here are three options and here is what our plan covers” is in a completely different position from one who says “you should probably get help.”
The Law Runs Opposite to the Instinct
Here is the part that surprises people. Under the Americans with Disabilities Act, an employee currently engaging in the illegal use of drugs is specifically excluded from protection when the employer acts on the basis of that use. So far, so intuitive.
But the ADA does not exclude someone who has successfully completed a supervised rehabilitation program and is no longer using illegally, someone currently participating in such a program and no longer using illegally, or someone with a history of addiction who is rehabilitated. The EEOC’s guidance on employer responsibilities under the ADA sets this out directly.
Read those two paragraphs together, and the practical consequence is stark. The moment an employee discloses a problem and asks for time to address it, they move from the unprotected category toward the protected one. Courts have generally read “current” to mean recent enough to justify a reasonable belief that use is ongoing, not a distant history. An employee who finished treatment six months ago is protected.
Which means the termination that carries real exposure is the one that follows a disclosure or a request for leave. The instinct to move fast and quietly is precisely the instinct that creates the claim.
What You Can Still Do
None of this leaves an employer powerless, and it is worth being clear about that.
You may prohibit the use of alcohol and illegal drugs in the workplace and require that employees not be under the influence. You may discipline or discharge an employee whose use adversely affects performance or conduct, applying the same standards you apply to everyone. Questions about current illegal drug use are permissible. And no federal law requires you to offer or fund rehabilitation instead of discipline — the ADA’s sponsors said so explicitly during its passage.
One nuance worth knowing: an employee taking legally prescribed medication for opioid use disorder, such as buprenorphine or methadone, under medical supervision and as directed, is not a current illegal user. Treating a positive test as automatic grounds for dismissal without establishing which situation you are in is a recognized way to get this wrong.
Manage the Performance, Not the Diagnosis
The practical resolution of all this is simpler than it sounds. Manage what you can observe and document, and stay out of the clinical business entirely.
Missed deadlines, absences, safety incidents, and conduct are your territory. You can address them with the same specificity and the same standard you would use for any employee, and that documentation is what makes any subsequent decision defensible. What is not your territory is diagnosis. You are not qualified to determine whether someone has a substance use disorder, and attempting it converts a performance conversation into a medical one you are not equipped to have.
So say what you have observed, state the standard, and mention that support exists if any of it is relevant. Then let the employee decide what to disclose. Keep whatever they tell you confidential and in a separate file from personnel records, which is a requirement rather than a courtesy.
Local Routes That Cost You Nothing
Orange County runs a behavioral health navigation line that is free, staffed around the clock, and genuinely useful to point someone toward. OC Links can be reached at 855-625-4657 by phone or chat, and its navigators connect callers directly to programs across roughly two hundred county services, in English, Spanish, Vietnamese, and Farsi.
That number belongs in the same document as your plan details. Handing someone a phone number that is not attached to a sales pitch is a small thing that lands very differently from a brochure.
The Return Is the Part Nobody Plans
Companies that handle the crisis reasonably well often fumble the re-entry, which is a shame, because that is where the retention actually happens.
Decide in advance who the single point of contact is, what the schedule looks like in the first fortnight, and what has been communicated to the team — which should be almost nothing. Consider whether a flexible schedule for continuing appointments is workable, since that is a named example of reasonable accommodation rather than an unusual request. Then treat the person as an employee again rather than a project.
The business case here is not complicated. Replacing a skilled worker costs a substantial multiple of what it costs to hold a role open for a few weeks, and the people who come back tend to remember which employer did it well.
