Friday, April 22, 2011

Can Employers Discriminate Against Drug Addicts? - COTW #37

In an ideal world, I could just give a one-word answer to the question posed in the title of this post and be done with it. But this is the law, where there are no easy answers (OK, maybe a few). The latest Case of the Week is Mauerhan v. Wagner Corp. (opinion here), in which the Court addresses this complex issue.

In this case, the plaintiff was fired after failing a drug test in violation of his employer's policy. That's not his complaint though. He was told that he could return to his employer if he got clean. So, he entered a drug rehab facility (testing positive for cocaine and marijuana on the way in) and completed a one-month program. His employer told him he could return to work... but for less pay and on different accounts. Ok, now he files the lawsuit.

An employee or applicant is not "a qualified individual with a disability" under the ADA, if he "is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. § 12114(a). So, what does "currently engaging" mean? Presumably, it does not mean at the current second... as in, you can only discriminate if the guy is literally blowing lines off the conference room table during the interview. But, how current is "current"?

There is no bright line standard, and different courts have handled it in different ways. In this case, the Tenth Circuit held:
[A]n individual is currently engaging in the illegal use of drugs if "the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem."
This is the same standard applied by the Fifth Circuit. The Tenth Circuit expressly rejected a formula, or timeframe.

It was all downhill for the plaintiff from there. His prognosis at the time was "guarded" and expert testimony indicated that Plaintiff needed three months to reach a "threshold of significant improvement." Summary judgment for the employer.

HT: Alisa Arnoff (@tervmom1 via Twitter). See also, coverage of this case from Jon Hyman.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.