July 1997

Workplace Labor Update - Who is a “Current” Drug User? – July 1997

4 min

The federal appeals court with jurisdiction over Maryland and Virginia has recently clarified when an employee is excluded from protection under the Americans with Disabilities Act on the basis of current drug usage. Shafer v. Preston Memorial Hospital, 107 F.3d 274 (4th Cir. 1997).

In Shafer, the employee, a nurse anesthetist, was addicted to Fentanyl, a drug commonly used for general anesthesia. Although there was no evidence of on-the-job drug use, when confronted by hospital administrators, the employee admitted that she had recently engaged in illegal use of Fentanyl and that she had stolen Fentanyl from the hospital by ordering extra dosages of the drug for patients. The hospital placed the employee on medical leave and helped her to report to a rehabilitation facility. About a month later, while she was still in treatment, the hospital terminated her.

The ADA prohibits an employer from discriminating against a "qualified individual with a disability" on the basis of the person's disability. While drug addiction is a disability, the ADA specifically provides that a person is not "otherwise qualified" if she "is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." On the other hand, the ADA also provides a safe harbor for recovering addicts, stating that the current user provision should not be construed to exclude as a qualified individual anyone 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.

The dispute in this case focused on the scope of the phrase "currently engaging in the illegal use of drugs." The employee argued that because she was in a drug treatment program at the time that she was terminated and was not then taking drugs, she was not "currently" using drugs within the meaning of the exclusion. She contended that the exclusion from protection for "current" use only affects individuals engaging in the illegal use of drugs "at present" or during "the time actually passing." She argued that she was thus protected by the ADA from termination on the basis of her addiction.

The hospital argued that the employee was currently using drugs within the meaning of the statute at the time of her discharge and therefore her discharge did not violate the ADA. Agreeing with the defense, the Court reasoned that Congress intended a broad interpretation of the exclusion for current drug users. The Court explained that the "natural meaning of the phrase 'currently using drugs' does not require that a drug user have a heroin syringe in his arm or a marijuana bong to his mouth at the exact moment contemplated . . . . Here, 'currently' means a periodic or ongoing activity in which a person engages (even if doing something else at the precise moment) that has not permanently ended." An employer may consider an employee to be "currently using drugs" unless the employer receives reasonable assurances that no illegal use of drugs is occurring and that drug use has not occurred recently enough to suggest that continuing use is a real and ongoing problem. Without this level of assurance, enrollment in a treatment program will not-as the employee argued-automatically protect a drug using employee from termination. Protection under the ADA for persons who suffer from a drug addiction is intended only for those who have refrained from using drugs for some time, opined the Court, not for those who are in the precarious position of struggling with the disease.

This decision affirms an employer's ability to terminate a drug using employee without fear of liability under the ADA, even if the employee does not happen to be using drugs at the actual time of termination. As always, however, employers should tread carefully whenever they wish to terminate an employee who suffers from a disability, including drug use, to assure that no potential liability exists.