The Case for Ditching the Salary History Question

This month, California Governor Jerry Brown signed into law AB 168, which prohibits employers from requesting salary history from applicants.  The bill also requires employers, upon reasonable request, to provide the pay scale for a position to an applicant applying for employment.

According to the National Women’s Law Center, in 2017 nearly half of states considered legislation that would ban the salary history question in hiring. Massachusetts adopted a salary history ban in 2016. In 2017, California, Oregon, Delaware, Puerto Rico, San Francisco, New York City, Pittsburgh (Philadelphia’s ban is on hold pending a legal challenge), and New Orleans also passed salary history bans.  Add to this the fact that 42 states offered Equal Pay legislation in 2017, and what do you get?  Serious risk for employers – everywhere.

Much of the legislation regarding salary history is predicated on the theory that asking women about salary history perpetuates disparity in pay because women have historically earned less than men for performing the same work.  However, a recent survey released by PayScale suggests that the salary history question can also hurt female job candidates in another way.  According to PayScale’s survey, a woman who is asked about her salary history and declines to disclose that information earns 1.8 percent less than a woman who discloses her salary history. If a man declines to disclose, he gets paid 1.2 percent more on average.

While we can debate about the reasons for this disparity, the results highlight a significant risk to employers: The salary history question results in lower starting salaries for women; and if women are starting out at a lower salary than their male counterparts, there is a heightened risk of a pay equity claim later regardless of whether the employer actually has discriminatory pay practices. 

Still not convinced?

That’s okay.  Many of our clients have serious concerns that these new salary history prohibitions will limit employers’ ability to attract talent and negotiate competitive salaries.  However, where you see limitations, I see risk management opportunity.

Built in to California’s AB 168, is an obligation that creates an opportunity for all employers to reduce their overall risk for a pay equity claim.  Set clear salary ranges based on labor market data, and share that information with applicants.  It will set expectations at the outset, and if it is based on market data, it will attract talent.  Then, use the candidate’s job experience, skills, education, and performance in the interview process to set the salary.  This will ensure that the employer has a justifiable position with regard to each employee’s pay at the outset, and will be less likely to have a pay equity problem later.

By avoiding the salary history question altogether, employers don’t have to worry about the extensive risks these bans create.  Salary history questions in online applications are problematic because employers in a state without a salary history ban have to worry about out of state job applicants filing a complaint based on a salary history ban the employer was unaware of.  There is further risk due to the variances in the different state laws.  Some salary history bans allow employers to rely on salary history that has been volunteered by applicants, while other pay equity laws prohibit employers from relying on salary history alone regardless of the source.  Multi-state employers in particular will find it increasingly difficult to comply with pay equity laws while relying on salary history when setting pay.

By ditching the salary history question, employers can comply with salary history bans now, and limit their risk for pay equity problems later.

Massachusetts Supreme Judicial Court Says Marijuana Is a Reasonable Accommodation for Disability

Well, we knew this day would come.  Despite the fact that marijuana remains a Schedule I Controlled Substance under Federal law (defined as a drug or other substance  that has no currently accepted medical use in treatment in the United States), the Massachusetts Supreme Judicial Court just held that marijuana is per se a reasonable accommodation for disability.  In other words, employers in Massachusetts that test for marijuana need to immediately amend their policies and procedures to allow for the possibility of accommodating an applicant or employee’s medical marijuana use.  Deep breaths.

This is going to create a giant mess, you say.  You are not wrong, but at least the SJC outlined places where employers can demonstrate undue burden when they get sued.

But it does not necessarily mean that the employee will prevail in proving handicap discrimination…For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees. …Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana…In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.

As I said, deep breaths.  All is not lost, and compliance is possible.

As a reminder, both Massachusetts and federal law require employers to engage in an interactive dialogue with qualified disabled employees who request reasonable accommodation.  Indeed, it was Advantage Sales and Marketing’s refusal to engage with Christina Barbuto, rather than their drug testing practices that the Supreme Judicial Court appears to take issue with.   MCAD Guidelines, § VII.C  advise that once a handicapped employee notifies the employer of need for accommodation to perform essential functions of job, “the employer should initiate an informal interactive process” with the employee to “identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations”).  The SJC makes clear that marijuana use may cause undue hardship for some employers, but employers cannot make that determination unless or until they engage with the employee to determine whether a qualifying disability exists, and whether factual circumstances surrounding the employee’s request would impose an undue hardship on the employer.

There are a few things to keep in mind:

  1. This decision does not address recreational marijuana use.  Employers do not have to allow employees to use marijuana at work, and can continue to test for marijuana use and terminate employees who fail the test.
  2. This decision does not find that Massachusetts law has created a protected class for medical or recreational marijuana users.
  3. This decision will not limit employers ability to regulate marijuana use in the workplace.  Employers do not have to allow employees to use marijuana in the workplace.

So what steps should an employer take if an employee notifies them that the employee is a medical marijuana user?  

Engage with the employee to determine the nature of the employee’s impairment, the nature of the accommodation the employee is requesting (is the employee asking to use marijuana at work, or merely notifying the employer that he or she will fail a drug test?), and whether there are alternative accommodations that will allow the employee to perform the essential functions of the job.  This process should be clearly documented, and in many cases will include the employee’s healthcare provider.  Depending on the employee’s requested use or the nature of the employee’s position, the request to use marijuana may not be reasonable or it may impose an undue hardship on the employer. However, the employer cannot come to this determination unless or until they engage with the employee.

And, it wouldn’t hurt to update your drug use and drug testing policies.





New Notice for California Employers

Think fast, the California Labor Commissioner just released a new notice regarding rights for victims of domestic violence, sexual assault, and stalking.  Employers must begin providing this notice to new hires – well, now.  It must also be provided to other employees upon request.  The Labor Commissioner’s Notice is here:

Employers also have the option of creating their own notice.  That’s right, time to update your handbooks.

More Evidence That the States Are Now Driving the Employment Law Changes Around the Country

Washington Jumps on the Paid Family and Medical Leave Bandwagon, But Paid Sick Leave is Coming First

Last week, Washington joined California, New York, New Jersey, and Rhode Island in guaranteeing paid family leave. Washington’s law is perhaps the most generous of the bunch, and the first to pay for the program without tacking it onto a state run disability program. The District of Columbia also approved a paid family leave law that will take effect in July 2020.

Washington State’s law will also take effect in 2020 and will offer eligible workers 12 weeks of paid time off for the birth or adoption of a child or for the serious health condition of the worker or the worker’s family member and an additional two weeks of leave for complicated pregnancies.

Washington’s paid family and medical leave will be funded through weekly paycheck contributions made by both employers and employees, similar to health insurance. Lower wage earners and their employers will contribute less than higher wage earners and their employers. Employers with less than 50 employees will have no obligation to contribute, although their employees will still contribute. Finally, self-employed workers in Washington will also be eligible to participate.

While employers in Washington have some time to prepare for this new law, this law stands as further proof that the big employment law changes are taking place at the state level. Employers with employees in multiple states should be ready to update their handbooks to include changes to state laws. Additionally, Washington employers do not have to wait until 2020 for a big change, as paid sick time is coming to the state in 2018.

The statewide Paid Sick Leave law is largely modeled after Seattle’s Paid Sick and Safe Time Ordinance that took effect in 2012. While both the Seattle and the proposed state law provide paid leave for the same reasons—an employee’s own or a family member’s illness, injury or medical care, a public health emergency, or qualifying reason under the state’s Domestic Violence Leave Act—they also have differences. It is important for employers to understand that where the state and local paid sick leave rules differ, employers will have to provide the benefit that is most generous to the employee. This will create complex compliance challenges, and we recommend working with an employment attorney to create and administer policies that satisfy both state and local laws. L&I is in the process of developing proposed rules for the new sick leave law, which will include opportunities for public comment, including public hearings. If you are interested in taking part, you can sign up for updates:


Changing Tides?

Back in 2015 and 2016, the DOL issued extensive regulatory guidance on independent contractors and joint employment that were essentially broad announcements of the agency’s changing (and much more employee friendly) views on the topics.  Many employers greeted this guidance unfavorably, and felt the DOL was attempting to skirt the traditional regulatory process.

Today, in perhaps the first concrete sign of the new administration’s more business friendly posture, the DOL announced the withdrawal of that guidance (Administrator’s Interpretations No. 2015-01 (July 15, 2015, on independent contractors) and No. 2016-01 (Jan. 20, 2016, on joint employment)).

Whether Trump’s DOL intends to take concrete steps to undue the prior administration’s labor related agendas remains to be seen, but this is certainly a sign of a changing tide.

This is Your Brain on Conflict: Deconstructing Conflict in the Workplace

I spend my days providing virtual in-house employment counsel to companies all over the United States. My position allows me to observe work-place conflict across a wide range of industries and geographical locations. While most of the questions I field relate to compliance with employment laws, they also relate to something much more basic – fear of conflict.

Conflict Avoidance

Conflict is disagreement, but contrary to popular belief conflict does not always involve fighting. Conflict exists in any situation where facts, needs or fears pull people in divergent directions. When the disagreement is unpleasant, conflict elicits stress, which is a basic self-defense mechanism. According to Joshua Gowin, PhD, stress tells our brains one of two things: I’m hurt, or I’m about to be hurt. If we believe we’ve been hurt, we release adrenaline within seconds and cortisol within minutes, which causes us to become impulsive. Ever send that panicked email you instantly regretted? You can thank the one-two punch of adrenaline and cortisol for that. Moreover, even stress over an anticipated conflict activates our stress response, leading to that sick feeling that something bad is about to happen. We experience this anticipative stress in most long-term conflicts with peers; we worry about some harmful outcome that might happen—or not. The danger with stress caused by both immediate and anticipated conflict is that the worry itself can cause as much harm as the outcome – while you’re stressing over what might happen, your body is releasing adrenaline and cortisol as if you are actually in danger.

When stress lingers, cortisol levels remain chronically high. Chronically elevated cortisol levels are a telltale mark of depression, anxiety, and post-traumatic stress disorder (PTSD). It is also a hallmark of burnout. 

Cortisol, like many hormones, has an optimum range, and too much is a problem. When stress lingers, cortisol levels remain chronically high. Chronically elevated cortisol levels are a telltale mark of depression, anxiety, and post-traumatic stress disorder (PTSD). It is also a hallmark of burnout.

This physiological response explains why we avoid perceived conflict – it isn’t pleasant. However, while it’s human nature to avoid uncomfortable conflict with others, that tactic won’t work in the long term, particularly in the workplace.

Workplace conflict isn’t limited to the problem employee who can’t get along with anyone in the department. In my experience, conflict shows up all over the workplace, and even small conflicts are often a symptom of larger problems. Unfortunately, avoiding uncomfortable conflict can be costly. According to Joseph Grenny of VitalSmarts, every unaddressed conflict wastes about eight hours of company time in gossip and other unproductive activities. Additionally, conflict avoidance can lead managers and HR to ignore important workplace compliance issues. In short, conflict avoidance, is a compliance-killer.

I firmly believe in building a culture of compliance, where organizations understand that at their root, employment laws are about treating employees well. A good place to start in building a culture of compliance is to understand that even though people often shy away from it, conflict is actually normal and healthy. In fact, healthy conflict is arguably a vital ingredient to organizational success. Experts have found that the most effective teams are those in which members feel safe enough to disagree with one another. A culture where dissent is allowed, or even encouraged, can spur innovation, diversity of thought and better decision-making.

In other words, conflict can be a good thing, and avoidance and procrastination are the real problems.

California Strikes Again

Another day, another blow to employers from the California Court of Appeals.  Earlier this month, the appeal court invalidated a commission-only plan that did not separately compensate non-exempt sales representatives for rest periods. What does this mean for your sales team?  Read on.  If you want to go straight to the source, the case is Vaquero et al. vs. Stoneledge Furniture LLC.

The 30 second summary: Stoneledge’s commission plan paid sales associates by commissions only.  It did not specifically compensate employees separately for breaks. The Company did allow employees to take a 10-minute rest period for every four hours worked as required by law, but the rest periods were not tracked or separately compensated.

Although Stoneledge won in the lower court, the appeals court reversed, relying on the plain language of California Wage Order 7: “authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”  The court also relied on two prior appeals court decisions, concluding that Stoneledge’s commission-only system violated California law because it did not separately compensate employees for rest periods.

The takeaway: Employers with non-exempt sales employees who are paid by commissions-only must make sure their systems are tracking and paying rest periods separately from commissions.  As a reminder, sales employees who spend more than 50 percent of their time engaged in outside sales are exempt, and this decision will not impact the way in which they are paid.


New California Rules Surrounding Employee Rest Periods

The U.S. Senate took a major step toward repealing the Affordable Care Act last week, by voting to approve a budget blueprint that will allow them to essentially dismember the law without the threat of a Democratic filibuster.  Meanwhile, in California, the Supreme Court continued the state’s trend toward increasing employee rights and protections.  For employers, and those of us who spend our days advising them, this sums up what the next four years will likely look like.  The Federal government will roll back employee friendly laws, and revert to a more employer friendly stance, while states California, Massachusetts, New York, New Jersey, and Illinois will continue to ramp up employee protections.  It is a brave new world, and one where compliance just got a whole lot more challenging, particularly for employers operating in multiple states.

In California, where the rule for some time has been that employers may not generally require employees to remain on duty or on-call during meal breaks, the California Supreme Court recently issued a new decision, Augustus v. ABM Security Services, Inc., confirming that employers have the same obligations regarding rest breaks as they do regarding meal periods:  employees must be relieved of all duties and employers must relinquish all control.

In reaching its decision, the California Supreme Court held: “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.”  The Court expressed concern that employees would need to stay close to the employer’s premises during their rest breaks; and combined with the affirmative duty to be “on-call,” it was sufficient to establish employer control.

Although the Supreme Court holding does not preclude employers from reasonably rescheduling rest periods when needed, or requesting an exemption from the Division of Labor Standards Enforcement (DLSE), the Court was clear that placing an employee on call during a rest period is not permissible.

Next Steps

Although the Court’s decision is in line with language in applicable IWC Wage Orders, the Labor Code, and prior holdings, it is a good reminder to employers to evaluate their rest break practices to ensure compliance.  Employers should review their handbooks and policies to ensure they do not require employees to stay on premises or at a certain location, or to carry cell phones or pagers, or perform any duties whatsoever during breaks.  It is common for employers in states outside of California to require employees to remain at or near the premises during rest breaks.  It is important that provisions like these be amended for employees in California.

Sick of Sick Time? If you have remote or traveling employees, be prepared to get sicker.



Five states, 27 cities, and one county across the United State have paid sick time laws on the books.  For some employers, determining whether they must comply with the sick leave law will be simple.  For employers with a traveling or remote workforce, the determination is quite a bit more complex, and represents a trap for the unwary.


Below is a breakdown of the states, cities and county that mandate paid sick leave as well as the employers that need to comply. In many cases, it does not matter how many employees the employer actually has working in the city or state.  Instead, the laws look to the overall employer size and the number of hours the employee works in the city or state.





Under the Massachusetts Earned Sick Time law, all employers, regardless of their size, must provide sick leave to employees.  Employers with 11 or more employees must provide paid sick leave, and employers with fewer than 11 employees must provide unpaid sick leave.

If an employer maintained an average of 11 or more employees on the payroll during the preceding calendar year, the sick leave must be paid. All full-time, part-time, seasonal and temporary employees must be counted, including employees who work outside of Massachusetts.  Even temporary employees provided by a staffing agency are counted as employees of both the employer and the staffing agency for purposes of determining whether the employer maintained an average of 11 or more employees.



Connecticut’s Paid Sick Leave Act, requires certain employers with 50 or more employees in Connecticut to provide 40 hours of paid sick leave per year to service workers.



The Healthy Workplace Healthy Family Act applies to any employee who has worked in California for the same employer for 30 or more days within a year from the beginning of his/her employment, even if the employee is a non-resident and/or the company is headquartered out of state.  This means that any employer who has even one employee who works for more than 30 days within a year in California must provide paid sick leave.



Oregon’s Sick Leave Act applies to employers with 10 or more employees in Oregon (6 or more employees for employers located in Portland). Employers with less than 10 employees (less than 6 for employers located in Portland) must provide up to 40 hours of unpaid protected sick time.         



Vermont’s Sick Leave Law will go into effect for most employers in Vermont on January 1, 2017.  Employers with five or fewer employees who are employed for an average of at least 30 hours per week do not have to comply with the new law until January 1, 2018.

The law applies to any employer doing business in or operating within Vermont.  This means that any employer with employees in Vermont will be responsible for complying with the law, regardless of where the employer is headquartered.




Montgomery County, Maryland

Under the Montgomery County Sick Leave Law, any employer operating and doing business in the County that employs 1 or more persons within the country in addition to the owners must provide earned sick and safe leave to each employee for work performed in the County.




New York City, NY

Employers located outside New York City must provide sick leave to employees who work more than 80 hours per calendar year in New York City. Employers with five or more employees who work more than 80 hours per calendar year in New York City must provide paid sick leave to employees who work in New York City. Employers with one to four employees who work more than 80 hours per calendar year in New York City must provide unpaid sick leave.


Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, Plainfield

Under the New Jersey cities’ various sick leave ordinances, workers employed in the relevant city (Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, or Plainfield) for at least 80 hours in a year must be provided with paid sick leave.




Philadelphia, PA

Under Philadelphia’s Promoting Healthy Families and Workplaces Law, any employer that employs at least 10 employees (including full-time, part-time, or temporary employees) for more than 40 weeks a year is obligated to provide paid sick leave.  All chain establishments—those with 15 or more establishments doing business under the same trade name—are also required to provide paid sick leave regardless of the number of  employees they have at the establishments in Philadelphia.


*Pittsburgh, PA

This ordinance is currently ineffective due to a judge’s ruling that blocked implementation.  The matter is now before an Appeals Court, but the law remains ineffective pending the appeal.  Under Pittsburgh’s Paid Sick Days Act, any employer that is situated or does business in Pittsburgh, and employs one or more persons in exchange for any form of compensation, is required to provide paid sick leave.


Washington, D.C.

The D.C. Accrued Sick and Safe Leave Act of 2008 (SSLA) applies to employers of any size with any employees in D.C. Only employees working in D.C. are counted for the purpose of determining how many sick days must be provided. An employee works in D.C. when:

  • he or she spends more than 50 percent of his or her working time in D.C.; or
  • his or her employment is based in D.C., he or she regularly spends a substantial amount of his or her work time in D.C., andhe or she does not spend more than 50 percent of his or her work time working in any particular state.


Chicago, IL

Beginning July 2017, all employees who work at least 80 hours within any 120-day period for an employer that maintains a business facility within the city of Chicago or that is subject to city licensing requirements are entitled to sick leave, regardless of the number of persons the employer employs. In other words, the paid sick leave requirement will apply to most employees in the city of Chicago.


Minneapolis, MN

The Paid Sick and Safe Time Ordinance for the City of Minneapolis will be effective July 1, 2017.  Under the ordinance, employers with six or more employees must provide paid sick and safe time, while smaller employers must at least provide unpaid leave. The Ordinance applies to private employers of all sizes, including employers with only one employee, as long one employee works within Minneapolis city limits.


Los Angeles, CA

With some limited exceptions, the Ordinance applies to all employees who work two or more hours during a particular week in the City of Los Angeles.



San Francisco/Oakland/Emeryville, CA (these laws are grouped together because they are almost identical)

Both the San Francisco and Oakland ordinances define employees as anyone working within the geographic boundaries of the respective cities, including part-time and temporary workers. Accrual caps are dependent on the size of the employer.  The size of the employer is based on the total number of employees within the company NOT the total number of employees within geographic boundaries of the city.


San Diego, CA

All employers regardless of size must comply with the ordinance. All employees who perform at least two hours of work in the City in one or more calendar weeks of the year are entitled to paid sick leave.


Santa Monica, CA

All employers regardless of size must comply with the ordinance. Any employee who works at least two hours in the City in a particular week is entitled to paid sick leave.


Seattle, WA

All employers who employ more than four full-time employees (in any city or state) and have at least one employee who performs work within the City of Seattle must comply with Seattle’s Sick/Safe Leave law.


Tacoma, WA

Every private sector employer that employs at least one employee is covered by the ordinance. All employees who work within the geographic boundaries of Tacoma are covered, including temporary and part-time employees. Employees who work in Tacoma only occasionally are covered by the ordinance if they perform more than 80 hours of work in Tacoma in a calendar year.


Spokane, WA

The ordinance provides paid sick and safe leave to employees performing more than 240 hours of work physically in the city of Spokane in a calendar year.


Questions?  We can help. 

Addiction in the Workplace

Earlier this year Massachusetts Governor Charlie Baker signed a comprehensive law intended to combat the state’s opioid addiction epidemic.  In recent years, opiate abuse has claimed thousands of lives in Massachusetts. Unfortunately, addiction is not limited to opiate abuse, and many employers know first hand the unique challenges addiction and drug and alcohol abuse and addiction pose in the workplace.

Title I of the Americans with Disabilities Act, and Massachusetts law specifically permit employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol.  At the same time, the ADA and state law provide limited protection from discrimination for recovering drug abusers and for alcoholics.  This tension leaves employers faced with the dual task of addressing workplace addiction and avoiding the threat of a discrimination lawsuit.

Here is a brief summary of the current state of the law as related to drug and alcohol abuse and addiction:

  • An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace, and employees may be required to follow the Drug-Free Workplace Act of 1988. At this time, the prohibition may include marijuana and medicinal marijuana.
  • An employee who is currently engaging in the illegal use of drugs is not an “individual with a disability” under the ADA or Massachusetts law.
  • Employers who test for the illegal use of drugs are not in violation of the ADA, but must comply with state drug testing laws.
  • Employers may terminate or deny employment to those currently engaged in the illegal use of drugs.
  • Employees who use drugs or alcohol can and should be required to meet the same standards of performance and conduct as other employees.
  • Employers may not discriminate against those with a history of drug addiction provided the individual is not using drugs and is actively engaged in rehabilitation.
  • Employers may not discriminate against alcoholics.  However, this protection does not extend to employees who are currently abusing alcohol.

When are drug users protected by the ADA and state discrimination laws? 

An employee who is “currently engaging” in the use of illegal drugs is not entitled to protection under the ADA and state disability laws.  Employers that consistently enforce workplace rules prohibiting employees from illegally using drugs, and disciplining employees who violate the policy will not be in violation of the ADA.

Where the law in this area can get tricky is that individuals who are undergoing treatment for drug and/or alcohol abuse are protected by the ADA. Specifically the ADA protected individuals:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • who are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • who are regarded, erroneously, as illegally using drugs.

Additionally a former drug addict may be protected under the ADA because the addiction may be considered a substantially limiting impairment. However, according to the EEOC Technical Assistance Manual on the ADA, a former casual drug user is not protected:

[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be “substantially limited” because of drug use, s/he must be addicted to the drug. The EEOC Technical Assistance Manual can be found here.

Alcoholism as a Disability

Alcoholism is a recognized disability under both Massachusetts law and the ADA. Individuals regarded as alcoholics, and those with a record of alcoholism, may be considered disabled.That means that if an employee comes to you and tells you that he or she needs to get help or take time off for an AA meeting, an employer should respond the same as any other request for accommodation under the ADA or state law.  Furthermore, if the employee is in fact an alcoholic, treating him or her differently from other employees could expose an employer to a discrimination claim under state and/or federal law. Under Massachusetts law:

An employer may only subject an addicted individual to discipline, including termination, if the employer would subject a non-handicapped individual to similar discipline for similar misconduct; and an employer may not treat the misconduct of an addicted employee more harshly than it would the misconduct of a non-handicapped individual.  Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap, Chapter 151B § X.D (1998). Furthermore, an employer must provide reasonable accommodation to individuals handicapped as a result of their addiction to alcohol where such accommodation permits them to perform the essential functions of the job, unless such accommodation creates an undue hardship.  Id.

Brief Overview of the American With Disabilities Act (ADA)

The ADA prohibits discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. Under the ADA, an employer must accommodate employees or applicants who request accommodation for a disability unless accommodation would create an undue hardship.  The ADA also permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” The defense of “direct threat” is one that is raised frequently by employers in dealing with issues of substance abuse. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”


In all cases, the determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job.  In determining whether an individual poses a direct threat, the factors to be considered include:

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm.

It is important to note that the EEOC has emphasized that an employer may not deny employment to an individual with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.”

Employers beware: 

  • The ADA requires an individualized assessment of every disability and request for accommodation.  There is no one size fits all approach that can be applied in every situation.  With each employee and each request for accommodation, the employer should engage in an interactive dialogue with the employee or applicant.
  • Discrimination has been found in cases where employers require routine testing in response to an employee self-disclosing as an alcoholic when other employees were not required to submit to the same routine testing.  As such, unless it is your policy that all employees submit to routine testing, you may not require it of this employee.