Employee Blames Misconduct on a Substance Use Disorder: How Should Employers Respond?

What should you do when an employee blames misconduct or poor performance on a substance use disorder? In most cases, go ahead with the discipline for what already happened, and handle the disclosure as a separate, forward-looking matter. The ADA lets employers hold employees with alcoholism or drug addiction to the same conduct and performance standards as everyone else, and it doesn't require excusing past misconduct. What it does require is that you treat the disclosure seriously going forward: consider leave for treatment, a possible accommodation if discipline short of termination is imposed, and FMLA rights.

Key Takeaways

• A disclosure doesn't erase misconduct. Employers can discipline, or even fire, for conduct or performance problems that happened before the employee disclosed a substance use disorder.
• Current illegal drug use isn't protected by the ADA. Alcoholism and past drug addiction can be, and so can an employee in treatment or in recovery.
• Accommodation looks forward, not back. If you keep the employee, you may need to consider leave for treatment or another accommodation, but you don't have to withdraw a warning or raise a rating.
• FMLA can cover treatment, not use. Leave for treatment by a health care provider can qualify; absences caused by using the substance don't.
• Last-chance agreements are allowed but not required. They work best when they're specific, signed and enforced.
• State law adds a layer. Pennsylvania, New Jersey, New York and Delaware have cannabis laws that protect some employees' off-duty or medical use. Maryland's protections for private-sector employees are much narrower.
• Marijuana's federal status is shifting. State-licensed medical marijuana moved to Schedule III in April 2026, but whether that brings ADA protection is unsettled.
• Federal contractors and grantees have extra obligations. The Drug-Free Workplace Act requires a written policy, an awareness program and action within 30 days of a workplace drug conviction.

When an Employee Blames Misconduct on Alcohol or Drugs: A Common Scenario

A manager calls an employee in to discuss a third missed shift, or a heated argument with a coworker, or a month of late reports. The meeting is supposed to end with a final written warning or a termination. Then the employee says: "I need to tell you something. I've been struggling with alcohol. That's why this has been happening. I need help."

The manager freezes. Do we have to stop the discipline? Is this now a disability? Can we still fire them? Should we tell them to go to rehab?

This happens more often than most employers expect, and the answer depends on what substance is involved, when the misconduct happened, whether the employee is currently using, what your policies say, and which state you're in. Getting it wrong in either direction is costly. Ignoring the disclosure can lead to an ADA or FMLA claim. Overreacting by excusing the misconduct entirely sets a precedent you'll have to follow for every other employee.

The good news is that the law gives employers a fairly clear framework. Discipline for what already happened, and handle the substance use disorder separately, going forward.

Is a Substance Use Disorder a Disability Under the ADA?

It depends on the substance and on whether the employee is using now. The Americans with Disabilities Act treats alcohol and illegal drugs differently (42 U.S.C. § 12114).

Alcoholism can be a disability

An employee with alcoholism can be protected by the ADA, even if they're still drinking. That protection has limits. Employers can still prohibit alcohol at work, require employees not to be under the influence on the job, and discipline employees who break those rules or don't meet performance standards.

Current illegal drug use isn't protected

An employee who is currently using illegal drugs isn't protected by the ADA, and employers can act on that use. "Current" doesn't mean the same day. It means recently enough that the employer reasonably believes drug use is an ongoing problem. Telling HR you're about to enter rehab after a failed drug test doesn't turn current use into past use.

The term "illegal drugs" also includes prescription drugs used without a prescription or not as prescribed. Marijuana remains illegal under federal law, so the ADA doesn't protect its use, but several state laws do, as we explain below.

Recovery and treatment are protected

The ADA protects employees who:

• have completed a rehabilitation program and are no longer using illegal drugs

• are participating in a supervised rehabilitation program and are no longer using

• are wrongly regarded as using illegal drugs

The EEOC has also made clear that employees lawfully using medication-assisted treatment for opioid addiction, such as buprenorphine or methadone, are generally protected. Employers shouldn't exclude them automatically, but can address real safety concerns based on an individual assessment (EEOC: Use of Codeine, Oxycodone, and Other Opioids).

Drug tests and alcohol tests are treated differently

A test for illegal drugs isn't a medical exam under the ADA, so employers can test according to their policy and state law. An alcohol test is a medical exam, so for current employees it has to be job-related and consistent with business necessity, such as reasonable suspicion of being impaired at work.

Can You Discipline or Fire an Employee Who Discloses a Substance Use Disorder?

Usually, yes. The EEOC's guidance on applying performance and conduct standards to employees with disabilities is clear on three points.

Same standards for everyone

Employers can hold employees with alcoholism or a drug addiction to the same performance and conduct standards as everyone else, even when the problem is caused by the condition. Being late, missing work, being impaired on the job, treating coworkers badly or falling behind can all be disciplined the same way they would be for any other employee, including through a performance improvement plan.

Misconduct before the disclosure can still be disciplined

A disclosure doesn't erase what already happened. If the employee's misconduct or performance problems came before they told you about the substance use disorder, you can discipline for them, including termination. The EEOC calls accommodation "prospective": it applies going forward and never requires excusing past poor performance or its consequences. You don't have to withdraw a warning, raise a rating or rewrite an evaluation. The same principle applies to other late disclosures, as we explain in ADA accommodation requests after termination.

Accommodation going forward if you keep the employee

If the discipline is less than termination, the disclosure may also be a request for accommodation. You then need to engage in the interactive process about what would help going forward. For alcoholism, that often means leave to attend a treatment program or a modified schedule for outpatient treatment or meetings. The ADA doesn't require you to tolerate continued drinking on the job or to lower standards, but leave for rehabilitation is generally required unless it causes undue hardship.

The practical rule: decide the discipline based on what happened, exactly as you would for any other employee. Then deal with the disclosure separately. Document both. If you were already planning a termination before the disclosure, have the documentation that shows it.

Does the FMLA Cover Substance Use Disorder Treatment?

Treatment, yes. Use, no. Under the FMLA regulations (29 C.F.R. § 825.119), substance abuse can be a serious health condition. An eligible employee can take FMLA leave for treatment by a health care provider, or by a treatment provider on a health care provider's referral. Absences caused by using alcohol or drugs, such as missing work because of a hangover, aren't FMLA-protected.

Two points trip employers up:

• You can't penalize an employee for taking FMLA leave for treatment. Once an eligible employee asks for leave to go to rehab, the leave is protected. Don't count it against them under an attendance policy.

• Treatment doesn't shield the employee from a policy you already have. If you have an established substance abuse policy that's been communicated to all employees, applied consistently and provides for termination in certain circumstances, you can enforce it, even while the employee is on FMLA leave. Without a written policy, firing someone during or right after treatment leave looks like FMLA retaliation.

Employees can also take FMLA leave to care for a spouse, child or parent receiving substance use disorder treatment. For more on the timing risks after leave, see can I fire someone who just came back from FMLA leave? and our guide to attendance, call-outs and ADA and FMLA terminations.

Do Employers Have to Allow Off-Duty Marijuana Use?

Marijuana is where federal and state law pull hardest in opposite directions, and where a "zero tolerance" policy can create real liability. An employer has to answer three questions: what federal law says, whether the employee is a medical patient, and what the state where the employee works says about off-duty use.

Federal law: still not protected, but changing

The ADA doesn't protect marijuana use, because it doesn't cover "illegal use of drugs" under federal law. That picture shifted in April 2026, when the DEA moved FDA-approved marijuana products and marijuana sold under a state medical license into Schedule III of the Controlled Substances Act. Recreational marijuana, including state-licensed adult-use products, remains in Schedule I, and a broader rescheduling decision is still pending (DEA: Marijuana Rescheduling Regulatory Actions).

Whether state medical marijuana patients are now protected by the ADA is unsettled. The ADA excludes drug use "under supervision by a licensed health care professional," but Schedule III drugs normally require a prescription, and a state medical certification isn't a federal prescription. Until courts or the EEOC weigh in, don't assume either answer. Federal requirements, such as DOT drug testing for commercial drivers and other safety-sensitive transportation jobs, still prohibit marijuana use.

Medical marijuana protections in Pennsylvania, New Jersey, New York, Delaware and Maryland

Even without ADA protection, most of the states where we work protect registered medical marijuana patients, and several treat them much like employees with a disability:

• Pennsylvania: The Medical Marijuana Act prohibits firing or discriminating against an employee solely because they're a certified medical marijuana user, and Pennsylvania courts have allowed employees to sue under it. Employers can still prohibit use at work and discipline employees who are under the influence at work when their conduct falls below the standard for the job. Certain safety-sensitive duties can be restricted.

• New Jersey: The Jake Honig Compassionate Use Medical Cannabis Act requires employers to give an employee who tests positive a chance to present a legitimate medical explanation before taking action. New Jersey courts have also held that the Law Against Discrimination may require accommodating off-duty medical use.

• New York: Certified medical cannabis patients are considered to have a disability under the New York State Human Rights Law (N.Y. Public Health Law § 3369), so the accommodation process applies.

• Delaware: The Delaware Medical Marijuana Act prohibits discrimination based on a patient's cardholder status or a positive test, unless the employee used, possessed or was impaired at work or during work hours.

• Maryland: Private employers generally aren't required to accommodate medical cannabis use. A 2026 law adds protections only for certain off-duty public fire and rescue workers.

Recreational marijuana and off-duty use laws in the Mid-Atlantic

In states that have legalized adult use, the question is whether employers can act on off-duty use:

• New Jersey: Employers can't take adverse action against an employee just for using cannabis off duty. Employers can still prohibit use and impairment at work and can drug test, but a positive test alone isn't enough. It should be paired with an evaluation of impairment under the state's Workplace Impairment Recognition Expert framework and the Cannabis Regulatory Commission's workplace impairment guidance.

• New York: Labor Law § 201-d protects lawful off-duty cannabis use. Employers can act only if the employee shows specific, articulable symptoms of impairment at work that reduce performance or interfere with workplace safety, or if federal law or a federal contract requires it.

• Delaware and Maryland: Adult use is legal, but neither state's recreational law adds broad employment protections. Employers can generally keep drug-free policies, but medical patients are treated differently in Delaware.

• Pennsylvania: Recreational marijuana isn't legal as of this writing, though legalization bills remain under discussion.

Local laws matter too. Philadelphia and New York City prohibit most pre-employment marijuana testing, with exceptions for safety-sensitive jobs and positions where federal law requires testing.

Other states and cities that protect off-duty marijuana use

Multistate employers and remote workforces need to look beyond the Mid-Atlantic. The jurisdictions below protect off-duty marijuana use in at least one circumstance: for all adults, for job applicants during hiring, for registered medical patients, or for public employees only. Almost all of them let employers prohibit use and impairment at work and include exceptions for safety-sensitive jobs and federal requirements.

Other states and cities that protect off-duty marijuana use

Jurisdiction	Who is protected	Citation
Arizona	Registered medical patients	Ariz. Rev. Stat. § 36-2813
Arkansas	Qualifying medical patients	Ark. Const. amend. 98, § 3
California	All adults, for off-duty use and tests for non-psychoactive metabolites	Cal. Gov't Code § 12954
Connecticut	All adults, unless the employer has a written policy, and medical patients	Conn. Gen. Stat. §§ 21a-408p, 21a-422p
District of Columbia	Most employees, for off-duty use and registered medical patients	D.C. Cannabis Employment Protections Amendment Act of 2022
Illinois	Medical patients, and off-duty use under the lawful products law, though employers can keep reasonable drug-free policies	410 ILCS 130/40; 820 ILCS 55/5; 410 ILCS 705/10-50
Louisiana	State government employees who are medical patients	La. Rev. Stat. § 49:1016
Maine	Medical patients	Me. Rev. Stat. tit. 22, § 2430-C
Massachusetts	Medical patients with a disability, who may need accommodation	Mass. Gen. Laws ch. 151B; Barbuto v. Advantage Sales & Marketing (Mass. 2017)
Minnesota	All adults, through drug testing and adverse action limits, and medical patients	Minn. Stat. §§ 152.32, 181.951, 181.952
Missouri	Medical patients	Mo. Const. art. XIV
Montana	All adults, under the lawful products law	Mont. Code Ann. § 39-2-313
Nevada	Job applicants, through pre-employment testing limits, and medical patients, who may need accommodation	Nev. Rev. Stat. §§ 613.132, 678C.850
New Hampshire	Medical patients with a disability, who may need accommodation	Paine v. Ride-Away Handicap Equipment Corp. (N.H. 2022)
New Mexico	Medical patients, except in safety-sensitive jobs	N.M. Stat. § 26-2B-9
Oklahoma	Medical marijuana license holders	Okla. Stat. tit. 63, § 427.8
Rhode Island	All adults not impaired at work, and medical cardholders	R.I. Gen. Laws §§ 21-28.6-4, 21-28.11-29
South Dakota	Medical patients	S.D. Codified Laws § 34-20G-22
Utah	State and local government employees who are medical patients	Utah Medical Cannabis Act, Utah Code tit. 26B, ch. 4
Virginia	Medical cannabis patients	Va. Code § 40.1-27.4
Washington	Job applicants, for off-duty use and non-psychoactive metabolite tests	Rev. Code Wash. § 49.44.240
West Virginia	Medical patients	W. Va. Code § 16A-15-4
New York City	Job applicants, through a pre-employment testing ban	N.Y.C. Admin. Code § 8-107(31)
Philadelphia	Job applicants, through a pre-employment testing ban	Philadelphia Bill No. 200625 (2021)

This area changes almost every legislative session, and the details vary: some laws cover only hiring, some apply only to public employers, and some let employers opt out with a written policy. Confirm the current law in each state where you have employees before you act. Vermont's Attorney General has also issued guidance that medical patients with disabilities are covered by the state's Fair Employment Practices Act.

What this means when an employee blames marijuana

If an employee says their misconduct was caused by marijuana use, the framework above still applies: discipline for what happened at work. Impairment on the job, using at work, and poor performance can be addressed in every state. What you generally can't do in New Jersey or New York, or with medical patients in Pennsylvania and Delaware, is discipline them simply for off-duty use or a positive test without evidence of impairment. Document observed behavior, not assumptions.

How Does the Drug-Free Workplace Act Affect Substance Use and Marijuana Policies?

The federal Drug-Free Workplace Act of 1988 applies to federal contractors with contracts above the simplified acquisition threshold (FAR 52.223-6) and to all federal grant recipients. It doesn't require drug testing, but covered employers must:

1. Publish a policy prohibiting the unlawful manufacture, distribution, dispensing, possession or use of controlled substances in the workplace, and the consequences for violating it.

2. Run a drug-free awareness program covering the dangers of drug abuse, the policy, available counseling and rehabilitation, and penalties.

3. Give the policy to every employee working on the contract or grant.

4. Require employees to report any criminal drug conviction for a workplace violation within 5 days.

5. Notify the contracting or granting agency within 10 days of learning of a conviction.

6. Within 30 days, take appropriate personnel action, up to termination, or require the employee to complete an approved assistance or rehabilitation program.

How it intersects with the ADA and state law:

• The ADA expressly allows employers to comply with the Drug-Free Workplace Act and other federal drug and alcohol rules.

• Because marijuana remains a federally controlled substance, covered contractors and grantees can't permit it in the workplace, even in states where it's legal.

• New Jersey, New York and Pennsylvania all include exceptions for actions an employer must take to comply with federal law or keep a federal contract or funding. Those exceptions are narrower than many employers assume. They cover what federal law actually requires, such as no use or impairment at work, not necessarily testing for or acting on lawful off-duty use.

• The rehabilitation option fits naturally with a last-chance agreement, discussed below.

If your company has federal contracts or grants, review the drug-free workplace policy alongside your state cannabis obligations, so the policy doesn't promise more, or less, than the law requires.

How Should Employers Respond? 8 Steps to Follow

When an employee raises a substance use disorder in a disciplinary or performance conversation, these steps keep the response lawful and consistent:

1. Stay calm and don't promise anything. Thank the employee for telling you. Don't say the discipline is canceled, and don't ask for details about their drinking or drug use. Say you'll follow up.
2. Pause and bring in HR. A manager shouldn't decide on the spot. Move the decision to HR or an outside HR advisor who can look at the facts, the policies and the law.
3. Separate the discipline from the disclosure. Decide the discipline based on the conduct or performance and how you've handled similar cases before. Check whether a termination was already in motion and documented before the disclosure.
4. Identify which laws apply. Is it alcohol, illegal drugs, prescription medication or marijuana? Is the employee currently using, in treatment or in recovery? Are they a registered medical marijuana patient? Are they FMLA-eligible? Which state and city do they work in? Is the company a federal contractor or grantee?
5. Respond to the disclosure going forward. If the employee stays, treat a request for help as a possible ADA accommodation request and FMLA notice. Offer information about your employee assistance program, FMLA leave for treatment and the interactive process.
6. Consider a last-chance agreement. If you're willing to give the employee another chance, put the terms in writing (see below).
7. Keep it confidential. Medical information, including a substance use disorder, goes in a separate confidential file. Share it only with people who need to know, and not with coworkers.
8. Document everything. Record what happened, what the employee disclosed, what you offered and the reasons for your decision. Our guide to documentation that protects employers from lawsuits explains what good records look like.

Last-chance agreements

The ADA doesn't require a second chance, but many employers offer one, often called a "firm choice" or last-chance agreement. The employer agrees not to terminate for the current misconduct in exchange for the employee completing treatment and meeting specific conditions. A good agreement:

• describes the misconduct and states that termination was warranted
• requires completing a treatment program, with proof of participation
• sets clear expectations for conduct, attendance and performance going forward
• explains any testing, such as return-to-work or follow-up testing, consistent with state law
• states that a violation will result in termination
• has a defined end date
• is signed by the employee, ideally after a chance to review it

Apply last-chance agreements consistently. Offering one to some employees and not others is a fast route to a discrimination claim. Because these agreements touch the ADA, FMLA, state cannabis law and sometimes a union contract, have them reviewed before you use them.

Common Mistakes When an Employee Discloses an Addiction

• Canceling discipline the moment the employee discloses. That sets a precedent every future employee can point to, and the law doesn't require it.

• Firing immediately after the disclosure without a documented reason. If the termination wasn't already in motion, the timing makes it look like the disclosure was the reason, a classic setup for a workplace retaliation claim. Our guide on how to legally fire an employee for poor performance explains how to build the record.

• Managers diagnosing or lecturing. Asking "how much do you drink?" or telling the employee they "need rehab" creates evidence that the employer regarded them as disabled.

• Treating marijuana like any other illegal drug everywhere. A zero-tolerance rule that ignores medical patients or off-duty use laws in New Jersey, New York, Pennsylvania or Delaware can create a claim of its own.

• Counting treatment leave as absences. FMLA leave for treatment is protected, and so is ADA leave granted as an accommodation.

• Sharing the information. Telling coworkers why someone is on leave violates the ADA's and FMLA’s confidentiality rules.

• Inconsistent last-chance agreements. Offering second chances to some employees and not others invites discrimination claims.

• No written policy. Without a communicated drug and alcohol policy, it's much harder to enforce consequences, including during FMLA leave. See our list of common employee handbook mistakes.

Facing a disclosure like this right now? Don't let a manager decide on the spot. CHRO's Employee Relations Support Program helps employers handle discipline, disclosures and terminations the right way. Schedule a confidential consultation.

How CHRO Helps Employers Handle Substance Use Disclosures

CHRO, LLC is an attorney-led fractional HR firm. Through our Employee Relations Support Program, FMLA and ADA compliance services and Outsourced CHRO Program, we help employers:

• Review discipline and terminations when a disclosure comes up, before a decision becomes a lawsuit.

• Manage FMLA leave and the ADA interactive process for treatment and return to work.

• Draft drug and alcohol policies that fit federal law, the Drug-Free Workplace Act and state cannabis laws in Pennsylvania, New Jersey, Delaware, Maryland, New York and beyond.

• Prepare last-chance and return-to-work agreements.

• Train managers on what to say, and what not to say, when an employee discloses a substance use disorder.

Frequently Asked Questions About Substance Use Disorders at Work

Is alcoholism a disability under the ADA?

It can be. Alcoholism can qualify as a disability even if the employee is still drinking. But employers can still prohibit alcohol at work, require employees not to be under the influence on the job, and hold employees with alcoholism to the same conduct and performance standards as everyone else.

Can you fire an employee who admits to a drug or alcohol problem?

You can't fire them because they have alcoholism, are in recovery or are in treatment. You can discipline or fire them for misconduct or poor performance, including problems that happened before the disclosure, as long as you treat them the same way you'd treat any other employee. Current illegal drug use isn't protected by the ADA.

Do you have to excuse misconduct once an employee says it was caused by addiction?

No. The EEOC says reasonable accommodation is prospective. It doesn't require withdrawing discipline, excusing past misconduct or changing a performance rating. If the employee stays, you may need to consider an accommodation going forward, such as leave for treatment.

Is rehab covered by the FMLA?

Treatment by a health care provider, or by a treatment program on a provider's referral, can qualify for FMLA leave if the employee is eligible. Absences caused by using alcohol or drugs don't qualify. You can still enforce an established, consistently applied substance abuse policy, even during FMLA leave.

Can an employer fire someone for using marijuana in a state where it's legal?

It depends on the state and the reason. In New Jersey and New York, employers generally can't act on lawful off-duty use alone, but can address impairment at work. Pennsylvania and Delaware protect registered medical marijuana patients. Every state allows employers to prohibit use and impairment at work, and federal requirements such as DOT rules override state protections for covered jobs.

Does the April 2026 rescheduling make medical marijuana protected under the ADA?

Not clearly. The DEA moved state-licensed medical marijuana to Schedule III, but the ADA protects only drug use that is lawful under federal law or supervised by a licensed health care professional. Whether a state medical certification meets that standard hasn't been decided. Until it is, follow state medical marijuana law and get advice before acting.

Can employers drug test employees for marijuana?

Usually, but what you can do with the result depends on where the employee works. Federal law and DOT rules allow or require testing for many jobs. New Jersey requires more than a positive test before taking action, New York generally limits action to observable impairment at work, and several states and cities, including Philadelphia, New York City, Nevada and Washington, restrict pre-employment marijuana testing. Medical patients in many states have added protections.

What does the Drug-Free Workplace Act require?

Federal contractors above the simplified acquisition threshold and all federal grant recipients must publish a drug-free workplace policy, run an awareness program, require employees to report workplace-related drug convictions and take action within 30 days of learning of one. The Act doesn't require drug testing.

Should employers use last-chance agreements?

They're optional, but they can be a good tool when you want to keep a valuable employee. Put the terms in writing, require treatment and compliance, state that a violation leads to termination, and use them consistently.

The Bottom Line on Substance Use Disorders and Discipline

When an employee blames misconduct or poor performance on a substance use disorder, don't cancel the discipline and don't rush the termination. Decide the discipline based on what happened, the same way you would for anyone else. Then handle the disclosure separately and going forward, through the ADA interactive process, FMLA leave for treatment, your employee assistance program and possibly a last-chance agreement. With marijuana, state medical and off-duty use laws, federal rescheduling and the Drug-Free Workplace Act all have to be considered together.

These situations move fast and the stakes are high. Schedule a confidential consultation to learn how CHRO's Employee Relations Support Program or Outsourced CHRO Program can help, or start with our free Workplace Diagnostic Questionnaire.

This article is general information, not legal advice. State cannabis laws and federal marijuana scheduling are changing quickly, so confirm current requirements before acting.

About CHRO, LLC

CHRO, LLC is an attorney-led fractional HR firm serving employers in Pennsylvania, New Jersey, Delaware, Maryland, New York and nationwide. Through our Employee Relations Support Program, FMLA and ADA compliance services and Outsourced CHRO Program, we help employers handle substance use disclosures the right way: reviewing discipline and terminations before they become lawsuits, managing FMLA leave and the ADA interactive process for treatment and return to work, drafting drug and alcohol policies that fit federal law, the Drug-Free Workplace Act and state cannabis laws, preparing last-chance agreements, and training managers on what to say when an employee discloses an addiction.

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