A recent 10th Circuit case shows the need for precision when determining whether an employee is a current or former drug user before making any employment-related decisions. The proper determination can shield an employer from liability under the Americans with Disabilities Act (ADA).
Peter Karl Mauerhan was a sales representative for Wagner Corporation with a drug problem. He entered voluntary outpatient rehabilitation while continuing to work at the company. A year later, the employer made him take a drug test. The test was positive and the Company fired him, but said he could come back if he “got clean.” Mauerhan checked into an inpatient drug treatment program for thirty days. Upon his discharge, his drug counselors said his prognosis was “guarded.” The day after completing the program, Mauerhan asked for his old job. The employer offered him a different position than before, but Mauerhan refused. Mauerhan claimed the Company violated the ADA because they discriminated against him based on his prior drug use.
The ADA considers recovering drug addicts disabled and protects them from discrimination. However, it does not protect current or active drug users. Mauerhan claimed he was a recovering addict at the time, and therefore entitled to protection. The employer believed he was still an active drug user due to his “guarded” prognosis.
The 10th Circuit agreed with the employer, finding that at the time Mauerhan asked for his job back, he was still an active drug user, and therefore not covered under the ADA. The ADA provides “if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem,” then the employee is not covered. Doctors testified it takes about three months to be truly clean from drug addiction. Here, Mauerhan had only been in treatment for thirty days. In addition, his prognosis upon leaving the program was only “guarded” which means his physicians were unsure that he was completely clean. It was reasonable under such circumstances for an employer to believe the employee was still a current drug user.
Employers should be very careful when making employment decisions regarding a former drug addict. The Court did not articulate any bright line test for employers to follow. The longer the employee is in or has been finished with treatment, the more likely he/she will be considered rehabilitated. If employers are unclear, it is advisable to consult with the former employee’s doctors and counselors. Each employee’s condition should be treated on a case by case basis.
Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
