I am a nurse on probation and was offered a job. I am then required to inform my employers of this and the reason I am on probation. I was then refused employment due to the fact I used to have a drug problem. Is this discrimination? I am under the impression that alcoholism is a disease and is therefore falls under the ADA. Am I crazy? How can so many employers get away with this. This is not the first time this has happened to me. I have been looking for a job for over two years.I have complete documentation of my sobriety for the entire time I have been sober, I have attended outpatient programs and still go to AA meetings.
My law firm practices exclusively in the field of California professional and occupational licensing law and your situation is one which, unfortunately, we see often. Standard probation conditions imposed by the Board of Registered Nursing (also the boards for Vocational Nursing, Respiratory Care Practitioners, Physical Therapists and many other health care professionals) require the licensee with probationary conditions to work a specified number of hours per week and for a specified number of months at the licensed profession, but at the same time the probation conditions are so burdensome to the probationer's employer or potential employer that the licensee under probation cannot get or maintain employment. It often feels to the licensee -- and operates - as a Catch 22, a set-up for failure.
Many of our clients are or have been in the same position. We have had some success in requests to modify the probation conditions where we can make a specific showing of hardship or a specific compelling showing that "but for" a particular probationary condition, the probation-burdened licensee could and would meet their "work-time and work-duration" probation conditions. We have also had some success in making successive requests for minor modifications in probation which, taken together over time, can make a significant difference to the licensee's ability to find and keep employment. But it is a hard slog, requiring patience and stamina and the fortitude to keep pressing, even when the initial result is unsuccessful or insignificant.
There are some theories for ADA applicability to alcohol-dependents, but the reality is that there is little enforcement of the ADA in this respect and few meaningful remedies for claimants. There are so many exceptions and exclusions in applying ADA to cases of alcohol-dependents, employers do not put much effort in avoiding liability -- which is the key to any such statutory scheme having a meaningful impact.
I do recommend that you seek a consultation with an attorney with a substantial caseload and history with ADA cases, particularly cases involving alcohol-dependency. And you might consider consulting with an experienced licensing attorney to determine whether there is any likely grounds for an effort to modify the probationary restrictions on your nursing license. Sometimes some seemingly small specific fact can be the linchpin for a successful modification but it takes a highly seasoned and experienced attorney to recognize such a detail in the larger set of facts.
Finally, I note that if you have been looking for a job for over two years, and working your recovery program and probation successfully all that time, you are eligible by BRN standards for an early termination of your probation.That is definitely worth pursuing. Consult with a good licensing attorney on this possibility, and best wishes to you. Try to see the light at the end of the tunnel. Probation is not forever and yours should end in another year at most even if you do not apply for early termination.
Under Federal law, an alcoholic or drug addict who is "in treatment" (or in a recovery program) can be deemed to have a "disability" that may or may not require an accomodation in the performance of a job. Active alcoholics and/or drug addicts are not considered "disabled" because they are not receiving treatment. The problem in your situation may be the issue of your probation and your profession as a nurse. If the terms of your probation limit your access to or handling of mediations that can be abused, an employer may view that as a limitation in the tasks that can be assigned to you, and can decide that you aren't the best candidate for the job if they have other applicants who have no such limitations. No doubt there are plenty of people in the medical profession who have received treatment or are in recovery for alcoholism and substance abuse who continue to work in the field, but they may not have restrictions imposed by probation.
You may consider discussing this with your probation officer in view of your outpatient treatment and time in a program.
