When it comes to drugs and alcohol, those addicted to drugs and alcohol are not treated the same way as persons with other disabilities. For example, an employer has the right to evaluate an alcoholic employee or an employee addicted to drugs as if the disability didn’t exist. 42 U.S.C. § 12114(c)(4); EEOC interpretive guidance on 29 C.F.R. § 1630.16(b). Also, under 42 U.S.C. § 12114(a) a person currently using illegal drugs or alcohol is not protected. Finally, a person who is in a rehabilitation program or has completed a rehabilitation program and is no longer engaging in the use of alcohol or drugs can be protected under the ADA. 42 U.S.C. § 12114(b)(1),(2). In short, a person using drugs or alcohol is not protected, but a person with a record of using drugs or alcohol can be. Case law often refers to this as a safe harbor. Case law may also refer to it as a person not being qualified since that is the statutory language.
The 11th circuit just came down with a decision, Jarvela v. Crete Carrier Corporation (published). As is typical for my blog entries, I have divided this entry into several categories: facts; issue; court’s reasoning; takeaways; current user; from what time is current user measured by; and how to make sense of it all. The reader is free to focus on any or all of the sections.
The facts are really straightforward. The plaintiff was terminated by the employer because the week prior to the termination, a substance abuse center, for which the plaintiff had taken FMLA leave, had discharged the plaintiff with a diagnosis of alcohol dependence. The plaintiff was a commercial truck driver, and Department of Transportation regulations specifically say that a person must not have a current clinical diagnosis of alcoholism in order to be able to be a commercial truck driver.
Was the plaintiff a qualified person with a disability?
1. The plaintiff’s written job description for a commercial motor vehicle driver provided that the driver has to qualify as an over the road driver under U.S. Department of Transportation regulations.
2. The Department of Transportation regulations require that a commercial truck driver not have a current clinical diagnosis of alcoholism.
3. The ADA has a provision in it that allows for Department of Transportation regulations to act as a trump card if the employer is engaged in the transportation industry. 42 U.S.C. § 12114(c)(5)(C).
4. A person cannot reasonably contend that a seven day old diagnosis of alcoholism was not current at the time of his termination, and the court went on to specifically say that a seven day old diagnosis is current under the applicable Department of Transportation statute and regulations.
5. The court does say that they are not prepared to draw a bright line as to how much time can pass before diagnosis of alcoholism is no longer current. They also say that they are not rendering an opinion as to the meaning of current in any other statutory or regulatory context dealing with employer-employee relations.
1. I found this case strange. Basically, it says that if an employer is in a transportation industry, then a person who is terminated seven days after completing a rehabilitation program is a current user under applicable Department of Transportation statutes and regulations and therefore, is not a qualified person with a disability protected by the ADA. As such, this is a narrow holding.
2. Under the ADA, a person in a rehabilitation program for drug or alcohol addiction can be a qualified person with a disability for purposes of the ADA. Same for a person that has successfully been rehabilitated either in a program or otherwise who is no longer currently engaging in such use.
3. But what if the employer is not engaged in the transportation industry and so you do not have the same statute and regulations involved. What do you do then? The current user safe harbor of the ADA remains. What guidance can you look to with respect to whether a person is a current user? Also, from what point in time do you measure whether the person is a current user of alcohol or drugs? Neither of these questions are answered by this case, which is a reason I am a bit surprised that the case was published, but it can be hard to figure out as to why a decision is published or not. For the answer to these questions, go to the next section.
There is case law out there talking about what “current user,” might mean for purposes of the ADA safe harbor. Depending upon the Circuit, you see various formulations:
1. Periodic or ongoing activity in which a person engages, even if doing something else at that precise moment, which is not yet permanently ended. Therefore, current drug use refers to the illegal use of drugs occurring recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem (Shafer v. Preston Memorial Hospital Corporation, 107 F.3d 274 (4th Cir. 1997) abrogated on other grounds by Baird ex rel Baird v. Rose, 192 F.3d 462 (4th Cir. 1999);
2. A significant length of time needs to transpire (Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001);
3. Looking at whether the circumstances of the plaintiff’s drug use AND recovery justify a reasonable belief that drug use is no longer a problem (Mauerhan v. Wagner Corporation, at 649 F.3d 1180 (10th Cir. 2011). It seems to me that a requirement concerning recovery is problematic as it runs the risk of allowing stereotypes about the potential for recovery to influence the termination decision and a person who is perceived as being an alcoholic or a drug addict is protected by the ADA (Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997).
4. The Third Circuit manages to agree with the Ninth, Fourth, Sixth, and Second Circuits all at the same time (New Direction Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir. 2007).
5. All of the Circuits mentioned in 1-4 of this section basically take their guidance from a Second Circuit court case, Teahan v. Metro-North Commuter Railroad Company, 951 F.2d 511 (2d Cir. 1991). The standard the Second Circuit used was whether the employee’s substance abuse problem was severe and recent enough so that the employer was justified in believing that the employee was unable to perform the essential duties of the job. That question in turn depends on the answer to several factors, such as the level of responsibility entrusted to the employee, the employer’s applicable job and performance requirements, the level of confidence ordinarily required to adequately perform the task in question, and the employee’s past performance record. In other words, in the Second Circuit, you have a two-step process. First, figuring out whether the plaintiff was a current user. Second, if the plaintiff is a current user, then figuring out whether the plaintiff was a qualified person with a disability.
From What Time Is Current User Measured by?
The Teahan case says that whether a person is a current user is measured by the actual date of firing rather than the date the employer is notified of the employee being a current user. That is a standard that the other circuits have followed except for the Fifth Circuit, which believes that the notification date is the critical inquiry (Zenor v. El Paso Health Care System Limited, 176 F.3d 847 (5th Cir. 1999).
How to make sense of it all
1. If you are an employer and an employee is a current user of drugs or alcohol, you, of course, want to look at your company’s policies. Then, you want to consider what industry are you in. Are there statutes and regulations, such as the Department of Transportation, that govern the situation? If not, when were you, as the employer, notified of the current use? Is the person a current user? Is the person a qualified person with a disability?
2. How do you figure out the answers to the questions in 1 of this section is very much going to depend upon the Circuit you are in. As mentioned in this blog entry, the cases are a bit all over the place. I know lawyers say it all the time that a lawyer skilled in the field should be consulted and it is kind of a stock in trade. However, this area is particularly unsettled and so consulting competent and skilled legal counsel in this area will likely prove helpful.
3. Work with your legal counsel to determine the proper time frame for deciding whether a person is a current user. Notification? Or termination? If your Circuit has not decided that question, be aware that arguments exist both ways. With respect to it being the termination, the arguments would be: such a rule is consistent with the legislative purpose of ensuring that individuals going through rehabilitation are not discriminated against on the basis of past substance abuse; ensures that the integration of people with disabilities into the workforce was not overly burdensome for the employer; and any burden on the employer is not outweighed by the ADA and the Rehabilitation Act purposes to afford substance abusers the opportunity to overcome the disability and become fully integrated into the workforce as soon as possible (Teahan). On the other hand, going the notification route provides a fair remedy to both the employer and the employee without penalizing the employer who allows an employee to take a medical leave of absence rather than terminate him or her right away (Zenor), which is exactly what happened in Jarvela.
4. Finally, since the cases are a bit all over the place, eventually expect the United States Supreme Court to step in and figure this out.