Illegal drugs and the ADA: What does ‘current user’ mean?
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Illegal drugs and the ADA: What does ‘current user’ mean?

What’s it mean when the ADA says employees “currently” using illegal drugs have no grounds for a disability discrimination lawsuit if they are fired? This is a pretty important question for employers.

You’re not obliged to accommodate a “current user” — an addicted employee who’s still using. You may, however, have to accommodate someone who’s used drugs in the past but no longer does, or who’s in the process of quitting through rehab. (The ADA rules and your accommodation responsibilities are slightly different for alcoholics, because their drug of choice isn’t illegal.)

In the case of drug addictions, any duty to accommodate you may have turns on the definition of “current user.” And the ADA doesn’t give one.

The courts speak
In the absence of clarity in the law, the courts have stepped forward with their own interpretations. The latest of these has just come out, in a federal appeals court ruling on a Utah case.

A salesman with a packaging company tested positive for cocaine and marijuana and was fired. The company told him that if he could kick his habits, he could be rehired.

The salesman went into an inpatient rehab program that lasted a month. On his completion of the program, a counselor said he had a “guarded” chance of staying clean. The salesman reapplied, and the company said he could come back – but not at the same pay rate, and not calling on the same customers.

‘No fair!’
The salesman thought that wasn’t fair, and sued. He said he wasn’t a current drug user when the company refused to restore him to his old job conditions. In fact, he told the court, he’d been clean from the time he entered the rehab program all the way until his suit was heard five years later.

So, he claimed, the company’s action amounted to discrimination because of his disability – drug dependency.

But the appeals court threw the salesman’s case out, and in doing so provided some much-needed guidance for employers facing similar situations.

No time limit
First, the court refused to give a specific number of weeks, or months that reforming drug users must abstain before they’re no longer considered “current” users. The point isn’t the absolute amount of time, the court said, “although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection.”

Instead, the court said the test of a current user is this: Has the person used drugs recently enough to give the employer a reasonable belief that the drug use is an ongoing problem?

The answer to that question will differ in each individual case. In the case of the Utah salesman, 30 days of rehab – which he finished with a “guarded” prognosis – wasn’t enough to earn him ADA protection as no longer being a current user.

The employer helped its case with testimony from an addiction specialist that someone like the salesman would need about three months of treatment to start to show significant improvement.

Cite: Mauerhan v. Wagner Corp., Nos. 09-4179/09-4185, 10th Cir., 4/19/11.

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