During the last number of years, federal law and policy have moved strongly to discourage the use of illegal drugs in the United States. The Americans With Disabilities Act ("ADA"), which became effective in 1992, is no exception. The ADA is crafted to protect disabled persons from discrimination in numerous areas throughout society. Nevertheless, Congress explicitly struck a blow against current illegal drug users by excluding them from coverage of the Act. However, recognizing that drug users should be encouraged to reform, Congress sought not to punish persons who had participated in a supervised rehabilitation program and no longer engaged in the use of illegal drugs.
In applying the ADA to workplace issues, lawyers and business persons grapple with the Act's intricate balance between discouraging illegal drug use on one hand, and protecting reformed drug users from discrimination on the other. This paper will briefly discuss the ADA's provisions on illegal drug use and review several recent cases where this issue has arisen in the workplace.
OVERVIEW OF THE ADA
President Bush signed the ADA into law on July 26, 1990. As of July 26, 1994, all employers engaged in an industry affecting commerce with fifteen or more employees in each of twenty or more calendar weeks in the current or preceding calendar year became covered.
Title I of the Act of the ADA prohibits both public and private employers from discriminating against persons with physical and mental disabilities. Under certain conditions, the ADA also creates an affirmative obligation on employers to afford reasonable accommodations to both disabled employees and prospective employees, as long as such accommodation does not result in undue hardship to the employer's business.
In enacting the ADA, Congress declared a strong national policy to eliminate discrimination against persons with disabilities, intending to "invoke the sweep of congressional authority, including the power to enforce the Fourteenth Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C. § 12101(a)(b).
The ADA prohibits discrimination against a "qualified person with a disability" in all phases of the employment relationship from hiring through termination. 42 U.S.C. § 12112(a). Employers are prohibited from discriminating against any person with a "disability." The term "disability" is defined as:
- a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- a record of such an impairment; or
- being regarded by the employer as having such an impairment. 42 U.S.C. § 12102(2).
EXCLUSION FOR ILLEGAL DRUG USERS
Recognizing the controversy that would arise if current illegal drug users claimed entitlement to protection under the ADA, and wishing to further the policy of zero tolerance for drug use, Congress made explicit exceptions. Under the ADA, "the term 'qualified individual with a disability' shall not include any employee or applicant 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). However, the ADA protects former drug users under certain circumstances:
[N]othing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who:
- 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;
- is participating in a supervised rehabilitation program and is no longer engaging in such use; or
- is erroneously regarded as engaging in such use, but is not engaging in such use . . .42 U.S.C. § 12114(b).
Several recent cases illustrate the manner which the courts have sought to interpret these provisions.
a. Shafer v. Preston Memorial Hospital Corporation, 107 F.3d 274 (1997) -- In this case, the plaintiff worked as an nurse anesthetist at a hospital. She became addicted to a narcotic analgesic called Fentanyl. The hospital performed an investigation and caught plaintiff stealing Fentanyl. After being confronted by the hospital's personnel director, the plaintiff admitted that she had diverted Fentanyl for her own use and was addicted to it. The hospital placed her on a medical leave of absence and helped her report to a drug rehabilitation facility.
On the day the plaintiff completed the in-patient portion of the drug rehabilitation program, the hospital informed her that she was terminated for gross misconduct involving the diversion of controlled substances. Plaintiff sued the hospital under the ADA claiming that her addiction to Fentanyl constituted a disability. The parties did not dispute that drug addiction was a disability under the Act. However, the Court recognized that the plaintiff would not be "qualified" under the ADA if she was currently engaged in the illegal use of drugs. The dispute in the case centered on the scope of the phrase "currently engaging in the illegal use of drugs." Plaintiff contended that she did not "presently" use drugs, having just left rehabilitation, and therefore would be covered by the Act as an addict. The Court disagreed, finding that "currently" means a periodic or on-going activity in which a person engages (even if doing something else at the precise moment) that has not yet permanently ended. The Court held that an employee illegally using drugs in the weeks and months prior to discharge from treatment is a "current" illegal user of drugs under the ADA and thus not protected by the statute. As the Court stated, the Act "does not require that drug user have a heroine syringe in his arm or a marijuana bong to his mouth at the exact moment" of termination to be excluded from coverage.
b. McDaniel v. Mississippi Baptist Medical Center, 877 F.Supp. 321 (S.D. Miss. 1994) -- The plaintiff, thirty years old, was a recovering "chemically dependent" person. At age nineteen, the plaintiff had been treated for dependency on alcohol, marijuana and cocaine. Since that time, he had been recovering. Prior to August 1992, plaintiff admitted that he was "out of control" in regard to a relapse and in active "chemical dependency." He checked into a treatment center called the Friary, and was released on September 19, 1992.
The plaintiff learned he had been fired the day after he was released from the Friary. Plaintiff contended that he had self-reported his relapse to his employer and voluntarily gone into treatment with the employer's encouragement. He sued for discrimination under the ADA.
The parties agreed that plaintiff would be a "qualified individual with a disability" under the Act unless the Court found that, at the time of his termination, plaintiff was "currently engaging in illegal use of drugs." The Court stated that the termination was conveyed to plaintiff and was known by him before he went into treatment. The Court found that Congress intended that a person must have been in recovery for some longer period of time than plaintiff presented in this case. The Court held that there must be a long term recovery program and a long term abstinence from drug use, not simply an immediate absence of illegal drugs.
c. Baustain v. State of Louisiana, 910 F.Supp. 274 (E.D. La. 1996) -- Plaintiff was fired after being found in possession of marijuana while driving an assigned state vehicle. Plaintiff contended that his disability was an addiction to marijuana. In deciding how long one must have abstained from drug use to fall under the ADA's protection, the Court refused to create a "bright line" distinction, but decided that being drug free for merely six weeks did not satisfy the requirements of the statute. The Court found that the seven week period between plaintiff being caught with the drugs and being terminated was simply not a sufficiently long enough time to avoid being classified as a current drug user. Plaintiff was thus not protected by the Act.
Under the ADA, persons "currently" using illegal drugs cannot take advantage of the protection afforded by the Act. The cases seem to suggest that an individual may not simply check into a rehab center, stop taking drugs for the time being, and expect to be covered by the Act. Instead, the trend is for coverage not to apply unless there has been a long term and permanent recovery from prior illicit drug use.