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ADA’s Safe Harbor Provision is Not All That Safe for Continuing Drug Users



By Robert Crump

In and out of rehab
A twelve-year operator of the largest extrusion press in the world had taken prescription pain pills to manage pain from work-related injuries for a long time, but began visiting physicians at other pain clinics to collect additional prescriptions for the same drug. Under the employer’s drug-free workplace policy, any employee who developed a problem with drugs or alcohol could confidentially inform the company’s human resources department to pursue treatment. Under that policy, however, an employee who rejected treatment or who left a treatment program before completion would be terminated.

Following a near overdose in 2009, the operator requested medical leave to be treated for addiction. The operator left the rehabilitation program after detoxifying, but before gaining a full discharge from his treating physician. The company’s HR department advised the operator his actions were grounds for termination but allowed him to reenter rehab. Upon readmission, the operator tested positive for the painkillers. Again, the operator left the program after completing detox but before completing treatment. The employer then fired the operator for twice failing to complete the program. The operator sued the company for discrimination and unlawful discharge under the ADA and the FMLA.

Employee claims violations of ADA and FMLA
The operator claimed he was unlawfully terminated under the ADA, which prohibits employers from discriminating against a “qualified individual on the basis of disability.” A qualified individual is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The Fifth Circuit disagreed with the operator, holding he was not protected by the ADA because he was a “current user of illegal drugs.” An individual who has used illegal drugs “in the weeks (or even months) preceding the adverse employment action” may be deemed “currently engaging” in the use and is expressly disqualified from protection under the clause.

The more intriguing claim, however, was the operator’s contention that despite his drug use he was eligible for the ADA’s safe harbor protection by virtue of completing a rehabilitation program. This reasoning was incomplete. The court rejected the operator’s claim he was entitled to the ADA’s safe harbor for individuals who have successfully completed a supervised rehabilitation program and is no longer engaged in the illegal drug use. The court reasoned “the mere fact that an employee has entered a rehabilitation program does not automatically bring that employee within the safe harbor’s protection.” It went on to state only individuals who have been drug-free for a “significant period of time” can obtain protection from the safe harbor.” In short, the person must have completed the program and no longer engage in drug use.
The decision regarding the safe harbor provision hinged on the term “currently engaging.” Ultimately, the court decided a significant period of recovery is necessary to take advantage of the safe harbor. Drug use in the weeks or months leading up to the adverse employment decision is enough to disqualify an employee from its protection, which was the case here.

As a secondary note, the court also rejected the operator’s claim the employer violated the FMLA by failing to reinstate him after his stint in rehabilitation. According to the Fifth Circuit, such a right is not guaranteed. The operator was fired for violating the drug-free workplace policy. Specifically, the operator’s right to reinstatement was extinguished when the employer exercised its prerogative to terminate the employee for the perfectly legitimate reason he had violated the company policy.


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