Thirty Day Rehab Does Not Assure ADA Protection for Drug Users

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A recent case from the 10th U.S. Circuit Court of Appeals should be of interest to all employers trying to navigate the murky waters of employee drug testing and rehabilitation. In the case, an employee sued his former employer for failing to reinstate him to his previous position (sales representative) after completing a one month inpatient drug rehabilitation program following his termination for testing positive for illegal drugs. The employee sought protection under the Americans with Disabilities Act (ADA) as a former drug user.

The employee, a previously treated drug user, had submitted voluntarily to a drug test while admitting that he would test positive for illegal drugs. He was fired the same day, but was told by one of his superiors that he could return if he got clean.

Following termination, he entered the drug program for 30 days and the report filed by his rehabilitation counselor at his release said his recovery prognosis was “guarded.” The day after completing the program, the employee contacted the employer and asked to return to work. He was told he could return to work but not in his previous position. The employee declined the new terms and sued the employer.

The District Court granted summary judgment for the employer and found the employee was not protected under the ADA because he was considered a “current” drug user at the time he sought re-employment. The 10th Circuit affirmed this ruling but declined to adopt a rule that 30 days of sobriety is “per se insufficient” to qualify for ADA protection.

The bottom line for employers is that, while interesting, this case does not provide absolute guidelines with regard to which employees may be or may not qualify for protection under the ADA’s safe harbor for former drug users. While individuals who have refrained from drug use for extended periods are most likely to qualify for ADA protection, in close cases an employer should confer with professionals that have experience in drug rehabilitation to determine an employee’s status.

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