Legal Eagle Eye Newsletter for the Nursing Profession (3)11 Aug 95

 

   Quick Summary: An employee who relapses into active chemical dependency is not a qualified individual with a disability and is not protected by the Americans With Disabilities Act from adverse employment action, including termination.

   A person with a history of chemical dependency who is no longer engaging in drug use is protected from employment discrimination, assuming the person has been in recovery long enough to have become stable, that is, the person is in a long-term recovery program with long-term abstinence from drug use.

   Three weeks was not "long-term," in this case.  U.S. DISTRICT COURT, MISSISSIPPI, 1995.

 

   The Americans With Disabilities Act (AWDA) was passed in 1990. The portions dealing with employment discrimination against disabled persons went into effect in July, 1992. Employers may not discriminate against any "qualified individual with a disability," which means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Consideration is to be given under the law to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job, according to the explicit wording of the AWDA.

   The AWDA states specifically that the legal definition of a "qualified individual with a disability" shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the employer takes adverse action against the employee or applicant on the basis of such use.

   On the other hand, the AWDA states that the definition of a "qualified individual with a disability" does include a person who is participating in a supervised rehabilitation program and is no longer engaging in illegal drug use.

   The facts of this case were very complicated. The employee in question worked as a marketing representative for an adolescent drug treatment program. His employment absolutely required successful abstinence and recovery from illicit drug usage. The employee in this case relapsed to active drug use for a period of time, then quit using drugs for three weeks, then told his supervisor of his relapse and of his intent to go back into inpatient treatment and then was fired. Assuming the employee was actually drug-free during that three-week period, his tenuous hold on abstinence as of the time he was terminated was not sufficient, in the view of the court, to fall within the special provisions of the AWDA for being considered as a recovering chemically dependent individual and "disabled" for purposes of employment-discrimination law.

   According to the court, Congress only intended to protect chemically dependent persons with long-term abstinence and proven commitment to recovery. An employee with an "immediate" toe hold on abstinence is not protected by the AWDA.  McDaniel vs. Mississippi Baptist Medical Center, 877 F. Supp. 3231 (S.D. Miss., 1995).