Can you reject an applicant BECAUSE he just completed drug rehab?

Although the Americans with Disabilities Act does not protect employees or applicants who use illegal drugs, it does protect those who are “participating in a supervised rehabilitation program, have successfully such a program, or who have otherwise been rehabilitated successfully.

Does that mean that an employer cannot refuse to hire someone who, on the day after he completes a drug rehab program, applies for work?

Find out, after the jump.

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It was either this or “White Rabbit

An admitted drug abuser swears he has cleaned up his act.

Last month, the Tenth Circuit Court of Appeals addressed this very issue. An employee who had tested positive for drugs, left his job to complete a drug rehab program. The day after he completed the program, he contacted his former employer and asked to return to work. The employee was told that he could return to work, but that he would not receive the same level of compensation as he had previously received or be able to service the same accounts he had prior to his discharge. The employee refused to accept these terms and sued claiming disability discrimination.

The employee-plaintiff contended that he was qualified to perform the essential functions of the job in question, and the employer regarded him as a current substance abuser, even though he was not. The employer-defendant contended that the change in the employee’s terms and conditions of employment was justified because, when the employee sought to return to work, he was a current drug user (even though he had completed rehab).

So is someone who completes rehab still a current drug user? It depends…

Relying upon, among other things, the legislative history of the ADA and the EEOC’s interpretive guidance, the Tenth Circuit concluded that whether someone is currently using drugs comes down to a rule of reason:

The provision excluding an individual who engages in the illegal use of drugs from protection . . . is not intended to be limited to persons who use drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather the provision is intended to apply to a person whose illegal use of drugs occurred recently enough to justify a reasonable belief that a person’s drug use is current. (Court’s emphasis)

Currently engaging [in drug use] . . . is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct. (my emphasis)

Accordingly the court concluded that “mere participation in a rehabilitation program is not enough to trigger the protections.” Rather, an individual is currently engaging in the illegal use of drugs if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.

Ah! The ole rule of reason.

Squishy, ain’t it? Given that the appeals court underscored that the rule of reason is “not solely one of the number of days or week have passed since an individual last illegally used drugs,” I am somewhat surprised that the court did not reverse summary judgment to allow a jury to determine what was reasonable under the circumstances of this case.

Maybe next time they’ll just defer to Joe Clark. Mr. Clark don’t play!

h/t Milwaukee Employment Lawyer Blog