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.