One of the conundrums Congress left us in the 1990 Americans with Disabilities Act is how to draw the line between those “currently engaging in the illegal use of drugs,” 42 U.S.C. § 12114(a) — who are not protected from discrimination under the Act — and those recovered or otherwise not “engaging” in such drug use under 42 U.S.C. § 12114(b). As the latest decision on this subject reveals, applying these sections to real-life facts is akin to nailing Jell-o to the wall.
Mauerhan v. Wagner Corp., No. 09-4179 (10th Cir. Apr. 19, 2011): The ADA excludes from the definition of “qualified person with a disability” anyone who “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). But the ADA also exempts from this exclusion any 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 such use;
“(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 . . . .
42 U.S.C. § 12114(b). This case tests the dividing line between the drug-use exclusion and the exemptions.
Here, the employee failed a drug test and was fired – with the reservation that he could return to work if he passed a drug treatment program. Upon exiting an in-patient program with a “guarded” prognosis, the employee reapplied to work for Wagner. “Mr. Mauerhan was told that he could return to work, but that he would not receive the same level of compensation as he had previously received or be able to service the same accounts he had prior to his discharge.”
The employee alleged that the above conditions amounted to discrimination because of his former drug use. The district court nevertheless granted summary judgment “because [plaintiff] was a ‘current’ drug user at the time he sought reemployment,” having abstained from drug use only one month prior to seeking reemployment.
The Tenth Circuit admits in its decision affirming summary judgment that the circuit has heretofore never settled on a single test or rule about which past or present drug-users fall into the exclusion. It does not attempt to do so in this case, either. It observes that Congress left the dividing line flexible enough to accommodate individual circumstances. It resists the suggestion that a plaintiff must prove some particular period of sobriety to benefit from the ADA’s coverage:
“The issue, therefore, is not solely one of the number of days or weeks that have passed since an individual last illegally used drugs. We hold, in agreement with the Fifth Circuit, that under the ADA, 42 U.S.C. § 12114(a), an 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.'” (Quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 856 (5th Cir. 1999).)
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“Wagner attempts to persuade us that an individual could never qualify for ADA protections after only thirty drug-free days. We disagree. No formula can determine if an individual qualifies for the safe harbor for former drug users or is ‘currently’ using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. Instead, an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, examining whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem.”
Instead of adopting a precise rule, the Tenth Circuit holds that the individual facts in this case – including testimony about how long a recovery might reasonably take – warranted summary judgment:
“Mr. Mauerhan failed to rebut evidence that more time was required for him to reach a stable state in his recovery. Although thirty days without using drugs may in some cases be sufficient for an employee to gain the protection of the ADA, the record before us shows that in this case it was not. On this record, it is undisputed that Mr. Mauerman’s recovery status was ‘guarded’ and at least ninety days of recovery was necessary to ensure significant improvement in his condition. As a result, Mr. Mauerhan failed to raise a genuine dispute regarding whether he was currently engaging in the illegal use of drugs within the meaning of the ADA at the time he asked to be rehired.”
So plaintiffs’ counsel representing alleged/former drug users under the ADA are advised to seek out expert testimony on this very issue.