This guest post was authored by Alison Carrinski

Employment-Application.pngSubstance abuse by employees costs public agencies billions of dollars each year and results in increased absenteeism, injuries on the job, and health care costs.  Pre-employment drug testing is one way for public agencies to help deter and prevent drug abusers from gaining employment.  There are, however, important employee protections mandated by the Americans with Disabilities Act (ADA) and the California Fair Employment & Housing Act (FEHA) that prohibit employers from discriminating against employees based on the protected status of being a rehabilitated drug addict.

Many public agencies, in order to identify current drug users during the pre-employment process, require any applicant who receives a conditional offer to submit to a drug test.  What if an employer decided to go one step further and adopt a “one-strike rule,” whereby any applicant who fails the pre-employment drug test becomes permanently disqualified from future employment—forever?  Would this type of rule run afoul of the anti-discrimination provisions of the ADA and FEHA related to rehabilitated drug addicts? 

The U.S. Ninth Circuit Court of Appeals recently answered this question in its decision Lopez v. Pacific Maritime Association (9th Cir. 2011) — F.3d — [2011 WL 711884].  In this case, the employer disqualified an applicant, a drug addict, in 1997 for failing its pre-employment drug test and then again rejected his application in 2004, once the employee had become clean and sober.  The employer did not know of the applicant’s earlier addiction at the time it denied the 2004 application.  In his lawsuit, the applicant claimed that the employer, through its “one-strike rule,” discriminated against him based on his protected status as a rehabilitated drug addict.  The Court disagreed, holding that the “one-strike rule” does not discriminate against people who have recovered from a drug addiction, but rather treats all applicants who happen to have used drugs immediately before the pre-employment drug test, whether as an addict or a recreational user, equally.  The Court also held that because the employer did not learn of the applicant’s prior addiction until after denying his 2004 application, there was no evidence its decision was based on the applicant’s protected status.

Although this employer’s “one-strike rule” may impose a harsh penalty on applicants who test positively for drugs—barring them from employment forever—according to the U.S. Ninth Circuit such a rule does not in itself violate the anti-discrimination provisions of the ADA or FEHA.  A state court in California, however, may decide this issue differently.

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