This guest post was authored by Oliver Yee

Employee substance abuse poses significant challenges for employers.  At what point in time is a drug user no longer a user?  Certainly, given the complexities surrounding drug use, addiction and recovery, this is a difficult question for an employer to answer.  The 10^th Circuit U.S. Court of Appeals in Mauerhan v. Wagner Corp., was recently posed with this difficult question and its answer should come of little surprise – it’s complicated.

Plaintiff Mauerhan was terminated by his employer, Wagner Corp., for violating its drug policy, but was told by his supervisor that he could return if he got “clean.”  Soon after his termination, Mr. Mauerhan entered into a drug rehabilitation program and tested positive for cocaine and marijuana upon entering the program.  He completed the program in one month and his prognosis at discharge was described by a rehabilitation counselor as “guarded.”  The day after completing the program, Mauerhan contacted Wagner and asked to return to work.  Wagner refused to re-employ Mauerhan in the same position and Mauerhan subsequently filed an action against Wagner alleging discrimination under the Americans with Disabilities Act (ADA) on the basis of his status as a drug addict.

Under the ADA, an employee is not a qualified individual with a disability if he or she is “currently engaging” in the illegal use of drugs when the employer acts on the basis of such use.  42 U.S.C. § 12114(a).  Indeed, section 12114(a) provides a “safe harbor” for employees who are not “currently engaging” in the illegal use of drugs and specifically exempts an employee 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….”  Id. at Section 12114(a)(1).

In Mauerhan, the 10^th Circuit interpreted the “currently engaging” exception to the ADA.  Mauerhan argued that he was no longer “currently engaging” in the illegal use of drugs because he had completed the one-month addiction treatment program and was no longer engaging in drug use when he sought re-employment.  The 10^th Circuit followed several other circuits and refused to adopt a bright-line rule for determining when an individual is no longer “currently engaging” in drug use.  Rather, the Court held that an individual’s eligibility for the safe harbor must be determined on a case-by-case basis.  Specifically, the circumstances of the individual’s drug use and recovery must justify a reasonable belief that drug use is no longer a problem.  With respect to Mr. Mauerhan, the 10^th Circuit found that he was “currently engaging” in the use of drugs when he sought re-employment.  The Court relied on the uncontroverted expert testimony of an addiction specialist who declared that approximately three months of treatment would be necessary for an addict like Mauerhan to reach a “threshold of significant improvement.” 

The Mauerhan decision reveals the complexities surrounding drug use, addiction and the recovery process.  By refusing to adopt a bright-line rule for determining when an individual is no longer “currently engaging” in drug use, the 10^th Circuit acknowledged that the timeframe for drug addiction recovery is not absolute and that a balancing analysis must be applied on a case-by-case basis.  The Mauerhan decision provides valuable insight to employers.  Employers should strongly consider utilizing a more flexible approach when addressing employees who suffer from substance addiction.

LCW provides a workshop and workbook on Issues and Challenges Regarding Drugs and Alcohol in the Workplace to assist public agencies with these matters.