Martin, Browne, Hull & Harper, P.L.L. Law Firm in Springfield, Ohio Current and Former Drug Users Under the ADA

In complying with the Americans With Disabilities Act (ADA), covered employers must address the status of employees with past, ongoing, or recent illegal drug use. One commonly cited principle is that persons addicted to illegal drugs may be protected as individuals with disabilities, as long as they are not currently using drugs. A second principle holds that even an individual with a disability must be “otherwise qualified” to avoid adverse employment action resulting from that disability. But what does “currently using drugs” mean? Can someone not “currently using drugs” fail to be “otherwise qualified” due to past drug use? Can a personnel policy requiring continuous abstention from illegal drug use for a substantial period of time, such as a year, ever be legal as a condition of new or continued employment?

An analysis of these and similar questions must begin with the definition of “currently using drugs” as set forth in ADA regulations and case law.

Predictably, no bright-line rules have emerged. The primary regulation gives no real guidance but merely echoes the statutory language as follows.

(a) The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(2) Illegal use of drugs means the use of drugs the possession or use of which is unlawful. . .

(b) However the terms disability and qualified individual with a disability may not exclude an individual who:

(1) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs; or

(2) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) Is erroneously regarded as engaging in such use, but is not engaging in such use.

(c) It shall not be a violation of this part for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (b)(1) or (2) of this section is no longer engaging in the illegal use of drugs.

29 C.F.R. 1630.3 (emphasis supplied).

The Appendix (Interpretative Guidance on Title I of the Americans With Disabilities Act) to 29 C.F.R. Part 1630 does elaborate on the standard.

The term “currently engaging” is not intended to be limited to the use of drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather, the provision is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct. . . .

29 C.F.R. Part 1630, App. at 1630.3 (emphasis supplied).

The EEOC Compliance Manual on Title I of the ADA reiterates the standards as follows.

What does “current” drug use mean?

If an individual tests positive on a test for the illegal use of drugs, the individual will be considered a current drug user under the ADA where the test correctly indicates that the individual is engaging in the illegal use of a controlled substance.

“Current” drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use or recent weeks or days, in terms of an employment action. It is determined on a case by case basis.

For example: An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming that s/he now is in rehabilitation and is no longer using drugs illegally. A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation. . . .

EEOC-M-1A Title VIII §8.3 Illegal Use of Drugs.

Courts have held that the phase “currently engaging in the illegal use of drugs” applies to persons who have used illegal drugs in the “weeks” and “months” preceding a negative employment action. See Shafer v. Preston Memorial Hospital Corp. (C.A. 4 1997), 107 F.3d 274, 278; Collings v. Longview Fibre Co. (C.A. 9 1995), 63 F.3d 828; McDaniel v. Mississippi Baptist Medical Center (S.D. Miss. 1995), 877 F.Supp. 321; Zenor v. El Paso Health Care System, Ltd. (C.A. 5 1999), 176 F.3d 847; Baustian v. State of Louisiana (E.D. La. 1996), 910 F.Supp. 274,276 (termination roughly seven weeks after being caught and arrested for possession of an illegal drug).

In Zenor, the Fifth Circuit held as a matter of law that a pharmacist who had used cocaine on August 15, 1995, was currently engaging in the illegal use of drugs for ADA purposes when his employer informed him on September 20, 1995, of its decision to terminate him. In Shafer, the Fourth Circuit held that the plaintiff who had engaged in illegal drug use three weeks prior to her termination was currently engaging in illegal drug use for ADA purposes at the time she was terminated, even though she had enrolled in a rehabilitation program in the interim. According to the Shafer court, “‘Currently’ means a periodic or ongoing activity in which a person engages (even if doing something else at the precise moment) that is not yet permanently ended . . .[A]n employee illegally using drugs in a periodic fashion during the weeks and months prior to discharge is ‘currently engaging in the illegal use of drugs.’”

In McDaniel, the district court dismissed the complaint of a hospital chemical dependency center’s marketing representative terminated as a result of his chemical dependency relapse. In late August 1992, managers at the chemical dependency center learned that the marketing representative was suffering from a relapse involving pain killers. Id at 324. While there was conflicting testimony, the court concluded that he was terminated prior to his admission to a treatment center on September 1, 1992. Id. at 325. The center had an oral one-year sobriety policy requiring employees dealing directly with patients to remain drug free for at least one year prior to employment and thereafter during employment. The employee testified that he was unaware of the policy prior to his termination. Id. at 325.

The court held that because the termination was communicated to the chemical dependency center’s marketing representative before he sought treatment, he was not an individual with a disability for ADA purposes. The court noted that the phrase “no longer engaging in such use” as used in the ADA regulations refers to a person who “has been in recovery long enough to become stable.” McDaniel, 877 F.Supp. at 328. Unfortunately, the McDaniel court did not rule on the general legality of the center’s blanket policy requiring employees to be free of drugs for at least one year in order to serve in positions involving patient contact.

Plaintiff was in the Friary [a treatment center] for approximately two and one half or three weeks, so if he was terminated when he came back, he had not ingested drugs for approximately six weeks. The question is whether he was “no longer engaging in such use.” The defendant [employer] pointed to the testimony of the doctor at the Friary and how he said that a person is in most serious danger of relapsing in the first three months after treatment and is not usually said to be in stable recovery for a year after treatment. The plaintiff, if that definition is applied here, certainly would not have qualified under either approach. . . .

The court is of the opinion that the legislative history indicates that the congress had in mind a drug free period of some considerable length. . . .

* * * * *

The court finds that congress intended for this exception to mean that the recovery must be for some longer period than plaintiff has presented here in this case, that this exception applies to a long term recovery program, and to a long term abstinence from drug use, not an immediate one. The issue here is where one draws the line. The court does not know where exactly to draw that line, but here finds that the plaintiff is on the non-exception side of the line and therefore does not qualify under this exception, even if the adverse action occurred after he entered the treatment center.

Id. at 327-328 (emphasis supplied).

In Montegue v. City of New Orleans (E.D. La. Sept. 13, 1996), Case No. 95-2420, unreported, the court held that a firefighter who (following his termination for failing a drug test) successfully completed a certified substance abuse program more than one year prior to requesting reinstatement as a firefighter was protected by the ADA from discrimination on the basis of his past drug use.

Montegue [the firefighter] has claims to [sic] have disability because he is a former addict. Montegue claims that he was not currently engaging in illegal drug use in 1993, at the time he requested reinstatement. Montegue completed a certified substance abuse program in 1991 more than one year prior to his request for reinstatement. Thus the court has no reason to believe that he is not a “stable” former drug addict.

Id. (emphasis supplied).

Case law under the Fair Housing Act, 42 U.S.C. §3601 et seq., which generally prohibits discrimination against persons with handicaps, with respect to certain types of housing, is instructive by analogy. Persons who have a record of drug use or addiction but who do not currently use illegal drugs enjoy protection under the Act’s definition of persons with handicaps, while “current, illegal use of or addiction to a controlled substance” is excluded from the definition of “handicap.” The Fourth Circuit has upheld a district court ruling that persons who have begun the “re-entry phase” of their rehabilitation program by remaining free of illegal drugs for a period of one year are not current drug users for FHA purposes. United States v. Southern Management Corporation (C.A. 4 1992), 955 F.2d 914, 923 (referencing the ADA).

Ohio state courts likewise recognize that the ADA’s safe harbor applies to individuals who have been drug-free for a considerable period of time and have been in rehabilitation long enough to become stable. See Star v. Delta Airline, Inc. (Dec. 29, 1995), Hamilton App. No. C-950217, unreported (citing McDaniel and Baustian).

In short, the number of months which may elapse before illegal drug use no longer is “current” is uncertain, may vary with the facts of each case, and almost certainly does not extend beyond twelve months.

Qualification Standards

The EEOC recognizes that for certain occupations, employers lawfully may require employees to be free of past as well as current drug use. Regulations provide as follows.

An employer, such as a law enforcement agency, may also be able to impose a qualification standard that excludes individuals with a history of illegal use of drugs if it can show that the standard is job-related and consistent with business necessity. (See Sec. 1630.10 Qualification Standards, Tests and Other Selection Criteria). . . .

29 C.F.R. Part 1630, App. at 1630.3 (emphasis supplied). The Compliance Manual contains the following guidance.

An employer can fire or refuse to hire a person with a past history of illegal drug use, even if the person no longer uses drugs, in specific occupations, such as law enforcement, when an employer can show that this policy is job-related and consistent with business necessity.

For example: A law enforcement agency might be able to show that excluding an individual with a history of illegal drug use from a policy officer position was necessary, because such illegal conduct would undermine the credibility of the officer as a witness for the prosecution in a criminal case.

However, even in this case, exclusion of a person with a history of illegal drug use might not be justified automatically as a business necessity, if an applicant with such a history could demonstrate an extensive period of successful performance as a police officer since the time of drug use.

EEOC-M-1A Title VIII §8.7 (Efforts to Prohibit Drug and Alcohol Use in the Work Place) (emphasis supplied).

In Zenor, the Fifth Circuit held that the employer was free to find that the pharmacist abusing cocaine was not otherwise qualified, even apart from the statutory exclusion of current illegal drug users from protection as individuals with disabilities. Noting that a qualified individual under the ADA is one who can perform essential job requirements, the court stated that the pharmacist’s employer “reasonably may have felt that having a pharmacist who had recently been treated for cocaine addiction undermined the integrity of its hospital pharmacy operation.” The citations following this statement in the court’s opinion indicate that the hospital was entitled to consider reputational interests in determining that a recent (if not current) illegal drug user was not qualified to serve in the employer’s pharmacy operation. The court also stated that the employer was entitled to consider the high relapse rate for cocaine addiction in determining that the employee was not qualified to work as a pharmacist.

Similarly, recognizing that its holding that the marketing representative was not a protected individual with a disability might be overruled on appeal, the McDaniel court considered the hospital’s argument that the marketing representative was not “otherwise qualified” for his position. The court found that in essence, the representative’s job was to solicit patients for the chemical dependency center. The representative conducted face-to-face interviews with potential patients and filled out initial assessment forms containing data essential to the decision whether or not to admit the potential patient to the center. McDaniel, 877 F.Supp. at 328. The employer argued that such interviewing was an essential function of the job and could not be properly performed, at least from public relations and reputational standpoints, by a person who recently had relapsed. Id. In evaluating this argument, the court cited Section 12111(8) of the ADA, stating, “Consideration shall be given to the employer’s judgment as to what functions of the job are essential.” Id. The court found that it was “not unreasonable or beyond the reach of the ADA for the defendant to find that it was essential to the performance of the marketing job not to have a recently relapsed person holding that job.” The court accordingly dismissed the former chemical dependency center employee’s complaint. Unfortunately, as noted above, the McDaniel court did not pass upon the general legality of the center’s blanket policy requiring employees to be free of drugs for at least one year in order to serve in positions involving patient contact.

In a consistent holding, the Third Circuit vindicated a police department’s determination that a police officer terminated for failing a drug test was not “otherwise qualified” for his position, under the Rehabilitation Act of 1973, 29 U.S.C. §794. Copeland v. Philadelphia Police Department (C.A. 1988), 840 F.2d 1139.

We conclude that accommodating a drug user within the ranks of the police department would constitute a “substantial modification” of the essential functions of a police department and would cast doubt upon the integrity of the police force. No rehabilitation program can alter the fact that a police officer violates the laws he has sworn to enforce by the very act of using illegal drugs.

Id. at 1149.

In determining whether an employee was terminated on a pretext or was “otherwise qualified” for his position, a court may take into account the employee’s function as a role model or mentor. The Sixth Circuit considered this factor in connection with the termination of an alcoholic assistant football coach. See Maddox v. University of Tennessee (C.A. 6 1995), 62 F.3d 843.

Maddox [the terminated employee] . . . contends that UT’s [University of Tennessee’s] conclusion that he is no longer qualified to be an assistant coach at UT is without merit. Maddox claims that his misconduct did not affect his “coaching” responsibilities because an assistant coach’s duties are limited to the practice and playing fields, and do not comprise [sic] serving as a counselor or mentor to the players or serving as a representative of the school. Maddox relies on the facts that none of these functions were explained to him in his formal job description.

We first note that this allegation seems more appropriate for determining whether he was “otherwise qualified” rather than whether he was discharged because of his disability. Nevertheless, Maddox’s position is simply unrealistic. It is obvious that as a member of the football coaching staff, Maddox would be representing not only the team but also the university. As in the instant case, UT received full media coverage because of this “embarrassing” incident [involving the coach’s drunken driving]. The school falls out of favor with the public, and the reputation of the football program suffers. Likewise, to argue that football coaches today, with all the emphasis on the misuse of drugs and alcohol by athletes, are not “role models” and mentors simply ignores reality.

Id.

Application of these precedents depends upon the employment context at issue. Some past drug users, particularly those without a track record of good job performance following rehabilitation, are not “otherwise qualified” for jobs involving law enforcement, work with impressionable youth, access to controlled substances, treatment of chemically dependent persons, or other duties making reputation, credibility, or relapse a heightened concern. However, in the vast majority of jobs, individuals who have suffered from drug addiction in the past but are not currently using drugs generally will enjoy protection as otherwise qualified individuals with disabilities.