Q. We received notice that our employee is being assessed under the ‘Marchman Act’ – How do we proceed?
A. The Marchman Act provides for the involuntary or voluntary assessment and stabilization of a person allegedly abusing substances like drugs or alcohol, and provides for treatment of substance abuse. Marchmanactflorida.org describes the Act as;
The Hal S. Marchman Alcohol and Other Drug Services Act of 1993, or more commonly referred to as the Marchman Act, provides for emergency assistance and temporary detention for individuals requiring substance abuse evaluation and treatment in the state of Florida. The Marchman Act is initiated by filing a petition for involuntary assessment in the county court where the impaired individual resides. The petition must be filed in good faith by a person recognized by the court to do so. The petitioner must have reason to believe, and/or direct knowledge that an individual has lost the power of self-control with regard to substance abuse and that there exists the likelihood that the individual has the potential to inflict harm upon themselves or others unless they get help. Furthermore, it must also be demonstrated that the impaired individual is without the capacity to make rational decisions with regard to appreciating the need for treatment.
Additional Marchman Act information can be found in Chapter 397 of the Florida Statutes. It is believed the Marchman Act assistance can aid the user in receiving balanced care to support their recovery and create a long-term plan to wellness.
If the employee were found intoxicated or under the influence of illegal substances while on the job, that may be a reason for termination. Illegal drug use is never a protected disability. However, recovering addicts are protected by the Americans with Disabilities Act (ADA). In this scenario the employee no showed to work; the employer then received a notification from the employee with formal documentation that they were in the process of being detained per the Marchman Act laws and would not be available to return to work for approximately 1 week. At that moment in time, it is an issue of what is reasonable accommodation per the Americans with Disabilities Act (ADA) and is the company able to give the employee the time away with no undue hardship.
An employee receiving care due to substance abuse could be an accommodation under the Americans with Disabilities Act (ADA). Giving the employee time off (unpaid or utilizing any available PTO/vacation time) may be a reasonable accommodation.
Section VIII of the Technical Assistance Manual: Title I of the ADA describes the legal obligation of employers when dealing with employees struggling with substance abuse.
‘The ADA specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other Federal laws and regulations regarding alcohol and drug use. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.”
Overview of Legal Obligations (Section 8.2)
- An individual who is currently engaging in the illegal use of drugs is not an “individual with a disability” when the employer acts on the basis of such use.
- An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
- It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
- An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
- An employer may not discriminate against a drug addict who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction.
- A person who is an alcoholic is an “individual with a disability” under the ADA.
- An employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct to the extent that s/he is not a “qualified individual with a disability.”
- Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.
- Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to drug and alcohol use in the workplace.
During such scenarios it is important to stop and consider what may be a disability per the ADA and what may be your obligation as the employer to provide a reasonable accommodation to the employee.
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