Quandary Under ADA Whether to Rehire Former Drug Abuser

Case Shows Quandary Employers Face Under ADA About Re-Hiring Employee Who Has Used Illegal Drugs

Recently, the Tenth Circuit Court of Appeals reviewed whether an employer violated the Americans with Disabilities Act by refusing to rehire a former employee who completed a one-month drug rehabilitation program.  Mauerhan v. Wagner Corp., (10th Cir. Apr. 19, 2011)  The court found that the employee failed to demonstrate he was not “currently” engaged in the illegal use of drugs when the decision not to rehire him was made, and affirmed dismissal of the employee’s claim by the trial court.  However, the Tenth Circuit said such a determination has to be made on a case-by-case basis.

The Facts

Wagner Corporation hired Peter Karl Mauerhan as a sales representative in 1994.  In 2004, Mauerhan entered a voluntary outpatient drug rehabilitation program.  The employer was aware of Mauerhan’s participation in the rehabilitation program, even though it did not interfere with his work schedule.  In 2005, his employer requested Mauerhan to submit to a drug test.  When he failed the drug test, his employment was terminated for noncompliance with the company’s drug policy.  Mauerhan’s supervisor advised him that “he could return to Wagner if he could get clean.”

Shortly thereafter, Mauerhan entered a voluntary in-patient drug rehabilitation program for approximately one month.  According to his rehabilitation counselor, his recovery prognosis at discharge was described as “guarded.”  The day after Mauerhan completed the program, he contacted the employer and requested his job back.  Mauerhan was advised 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.”  Mauerhan declined the offer based upon these terms.

Mauerhan later filed suit alleging the company discriminated against him based on his drug addiction, in violation of the ADA.  The company moved for summary judgment that the district court granted.  It argued that Mauerhan “was unprotected by the statute because he was a ‘current’ drug user at the time he sought reemployment.”  Although Mauerhan had abstained from using drugs for one month, the district court held that “one month of abstaining from drugs was too short as a matter of law to gain the protections of the ADA.”  Mauerhan appealed.

The Decision

The Tenth Circuit Court of Appeals affirmed the lower court’s determination, but declined to state “a bright-line rule for when an individual is no longer ‘currently’ using drugs, as defined by the ADA.”  The Court said that whether an employee is “no longer engaging in” drug use could only be determined on a case-by-case basis.  The severity of the employee’s addiction, the relapse rate for the drugs used, the employee’s level of responsibility, the employer’s job performance requirements, and the employee’s past performance record were identified as factors to be considered in determining whether an “employee’s substance abuse prohibited the employee from performing the essential job duties.”

Here, the employer produced evidence that “Mauerhan’s recovery status was ‘guarded’ and at least ninety days of recovery was necessary to ensure significant improvement in his condition.”  Mauerhan failed to refute this.  Therefore, “[a]lthough 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.”

The Bottom Line

This case reinforces the difficult review employers must make of situations where employees with a history of drug or alcohol abuse have attempted rehabilitation and reapply for employment.  The court’s refusal to state a “bright-line” rule makes judgments on this question more difficult for employers.  Determinations will have to be fact-specific and supported by detailed evidence.

Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P.  She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or adair@bucknercross-law.com.    This material is not intended to be legal advice. The contents are intended for general information purposes only.