An employer is never prohibited from terminating an employee for on-the-job drug-related misconduct. Employers must tread carefully, however, when dealing with drug-addicted employees, who receive some protections from the ADA.
Section 12114 of the ADA addresses the handling of employees’ illegal use of drugs versus protected drug addiction:
- The ADA does not protect “any employee or applicant who is currently engaging in the illegal use of drugs.”
- The ADA, however, creates a safe harbor and protects employees who are no longer using illegal drugs and who are participating in a supervised rehabilitation program, have successfully such a program, or who have otherwise been rehabilitated successfully.
In Mauerhan v. Wagner Corp. (10th Cir. 4/19/11) [pdf], Mauerhan claimed that his former employer violated the ADA by discriminating against him on the basis of his status as a drug addict. The employer had refused to reinstate Mauerhan 30 days after his completion of a drug rehabilitation program. Wagner argued that 30 days was not long enough for one to be considered rehabilitated, and that Mauerhan was an unprotected “current drug user” when he asked for reinstatement.
The 10th Circuit refused to apply a bright-line rule as to how many days an employee needs to be clean to be considered “rehabilitated successfully” and “no longer engaging in the illegal use of drugs.”
No formula can determine if an individual qualifies for the safe harbor for former drug users or is “currently” using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem….
Among the factors that should be considered will be the severity of the employee’s addiction and the relapse rates for whatever drugs were used.
In other words, employers and employees litigating these issues would be well-served by retaining expert witnesses (drug counselors, psychologists, or psychiatrists) who can offer opinions on these issues. An employer should also focus discovery on the employee’s level of responsibility, the job and performance requirements, the level of competence ordinarily required to adequately perform the job, and the employee’s past performance record, any one or combination of which could show that despite the rehabilitation, the employee is nevertheless unqualified to perform the essential functions of the at-issue job.
These issues are not easy to litigate, but the proper preparation and correct focus during discovery can result in a successful defense.
[Hat tip: Paul Mollica’s Outten & Golden Employment Law Blog]
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
Ricky Gervais is a hero to all of us who live in the world of employment law or human resources. He created David Brent, the most inappropriate boss ever, on the original British version of The Office. David Brent begot Michael Scott, his U.S. counterpart and the second most inappropriate boss ever. I bring this up because last week, the Wall Street Journal published