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Terminating an Addicted Employee

Question: We have an employee who is a chronic prescription drug abuser. He has not been performing at work but every time we try to terminate him for cause, he immediately enters a drug rehabilitation program in order to avoid termination under the ADA, claiming that he has a disability. Does the ADA require that we keep this under-performing employee on our payroll just because he is enrolled in a drug rehabilitation program?

Wednesday, May 22, 2013
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Answer: No, it does not. Although an employee's status as an alcoholic or a recovering drug addict may merit protection under the ADA in certain circumstances, including when the employee is in rehabilitation and is no longer using, an employee or job applicant is not "a qualified individual with a disability" if he or she is "currently engaging in the illegal use of drugs."  42 U.S.C. § 12114(a) (2012). "Illegal use of drugs" includes "the illegal misuse of painkilling drugs which are controlled by prescription."  Id. § 12111(6)(A). So long as the employee's illegal drug use is "sufficiently recent to justify the employer's reasonable belief that the drug abuse remain[s] an ongoing problem," the employee is unprotected by the ADA, even if the employee enters treatment. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir. 1999).

Furthermore, if an employee's performance is suffering, an employer is free to take action on the basis of the employee's poor performance. The ADA specifically provides that an employer "may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee."  42 U.S.C. § 12114(c)(4).

I.              Under what circumstances is a prescription drug abuser protected?

Although the ADA specifically disqualifies employees "currently engaging in the illegal use of drugs," it provides a so-called "safe harbor" for employees who:

(1)   have successfully completed a supervised drug rehabilitation program or have been otherwise rehabilitated and are no longer engaging in such use;

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

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

42 U.S.C.A. § 12114(b)(1)-(3) (emphasis added).

Employees generally cannot benefit from the safe harbor provision if they have not refrained from the illegal use of drugs for a sufficient period of time. If the safe harbor does not apply, the fact that an employee is participating in a rehabilitation program at the time of termination does not afford the employee any protection. See, e.g., Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011) (no safe harbor where employee had completed rehab and had been drug-free for 30 days); Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) (no safe harbor where employee was in rehab at time of termination but had "not refrained from the use of drugs and alcohol for a sufficient length of time"); Shirley v. Precision Castparts Corp., 2012 WL 2577535 at *3-5 (S.D. Tex. July 3, 2012) (no safe harbor where employee had been in and out of rehab recently and was no longer illegally using prescription drugs, but he had "engaged in the illegal use within the weeks and months preceding his termination").

So long as an employer has a reasonable belief that the employee's illegal drug use is on-going, an employer may consider that employee to be "currently engaging in the illegal use of drugs" and may take action on that basis. The Equal Employment Opportunity Commission issued guidance on this issue that is consistent with the courts. The EEOC advises that 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."  EEOC Interpretive Guidance on 29 C.F.R. § 1603.3. Rather, it 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."  Id.

Timing is not the only consideration when evaluating whether an employer could maintain a reasonable belief that the drug use is ongoing and will continue to impact the employee's ability to his job. Courts may also consider:

  • The severity of the employee's addiction.
  • The relapse rates of for whatever drugs were used.
  • The level of responsibility entrusted to the employee.
  • The employer's applicable job and performance requirements.
  • The level of competence ordinarily required to adequately perform the task in question.
  • The employee's past performance record.

Mauerhan, 649 F.3d at 1188 (citations omitted).

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Even if an employee does qualify for the safe harbor provision, that does not afford him automatic protection. It simply means that he is not definitely excluded from individuals that may qualify as disabled. The employee must still establish all elements of a disability discrimination claim. Thus, the employee must demonstrate that his addiction amounts to a "disability" because it substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(A). The employee must further show that he is a "qualified" individual with a disability, which means that he must demonstrate that he can perform the essential functions of his job without reasonable accommodation. Id. § 12111(8). If an employee can establish all of these elements, then an employer is prohibited from acting on the basis of that employee's drug abuse. The employer may, however, act on the basis of the employee's poor performance, even if that poor performance is a result of the drug abuse. Id. § 12114(c)(4).

As always, employers should tread carefully and thoroughly investigate performance problems and document any such investigation before taking action. If an employer has a drug testing policy, the employer should ensure that the drug tests use reliable methods. A federal court in Utah recently held that a reasonable jury could have concluded that an employee was a "qualified disabled person" due to his prescription drug addiction, and a reasonable jury could further conclude that, in light of an employer's inadequate investigation, questionable drug test results, and inconsistent performance reviews, the employer's claim that it terminated the employee for poor performance was mere pretext, masking its true discriminatory intent. Fowler v. Westminster College of Salt Lake, 2012 WL 4069654 at *1-3 (D. Utah Sept. 17, 2012). This case appears to be an outlier, but it serves as a reminder that it is important to always thoroughly document performance and disciplinary problems to show that the reason for taking action against an employee is not pretextual.

II.            What is the impact of the 2008 amendments to the ADA?

The ADA Amendments Act of 2008, effective Jan. 1, 2009, does not impact the safe-harbor analysis. The amendments lowered the bar a plaintiff must clear to establish a qualified disability, but the provisions of the ADA related to alcoholism and illegal drug use remain unchanged. Courts applying the amended ADA continue to rely on ADA case law preceding the amendments. E.g., Shirley v. Precision Castparts Corp., 2012 WL 2577535 at *3-5 (S.D. Tex. July 3, 2012) (applying the amended ADA with reference to pre-amendment cases).

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group. Proskauer Associate Laura Deck assisted with this article.

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