Courts Debate Rehiring Substance Abusers

Can your company refuse to rehire former alcohol and substance abusers afterthey’ve been terminated? The U.S. Supreme Court has agreed to hear a case thatmay determine just that. The Ninth Circuit Court of Appeals ruled last year thatrecovered addicts can be considered disabled under the Americans withDisabilities Act, and therefore be protected against discrimination, prohibitingemployers from using their past substance abuse as a reason not to hire. TheSupreme Court will decide whether the ruling stands or isoverturned. Peter Susser, a partner in the Washington, D.C., office of LittlerMendelson, discusses the details and possible impact of Raytheon Company v.Hernandez.

 

What are the case basics?

Joel Hernandez worked for Hughes Missile Systems [now part of Raytheon] forabout 25 years, starting in 1966. In 1991, he was showing signs of substanceabuse, tested positive for cocaine use, and was given the option of quitting orbeing terminated. He quit. He went through rehabilitation and asked to berehired in 1994.

 

What did the company say?

The company had and still has a policy against rehiring former employees whowere terminated for any violation of misconduct rules, and the drug and alcoholrules are among the misconduct rules. So when Hernandez reapplied for a job withHughes, the company’s labor relations department realized he’d previouslybeen terminated for misconduct, and rejected the application. He filed a chargeof discrimination with the EEOC, and the case was brought to court under theAmericans with Disabilities Act. He really wasn’t challenging the fact that hewas terminated back in 1991, but rather he was focusing on the fact that at thetime he reapplied in 1994, he had what he called a “record of impairment”–andthat the company regarded him as having an impairment. He also argued that hispast drug use was relative to a past addiction from which he’d beenrehabilitated.

 

How was this argument received?

The district court rejected all these arguments by Hernandez, and grantedsummary judgment to the company. But the Ninth Circuit reversed. The courtacknowledged that when Hernandez was terminated back in 1991, he wasn’t aperson with a disability, because the language of the ADA specifically excludescurrent drug users from ADA coverage. But he had a record of a disability [atthe company], so when he reapplied after rehabilitation, no longer using drugs,he was entitled to the act’s protection. So the Ninth Circuit reversed andsaid the company’s policy was unlawful.

 

What does Raytheon’s case, to be presented to theSupreme Court, argue?

They argue that the Ninth Circuit’s opinion essentially createspreferential treatment for people who are fired for drug-related misconduct. Thecompany has a policy to not only fire but also refuse to rehire employees whoare terminated for other forms of misconduct, like theft. So the company arguesthat folks fired for alcohol or drug use get a special second chance here.

 

So the Ninth Circuit’s opinion basically says that once you’verecovered from an addiction, you can be seen as having adisability?

Right. Because the language of the law right now is that a current drug useris excluded from the definition of individuals with protected disabilities. Butonce a person has gone through rehabilitation successfully, that exclusion nolonger applies. At that point, they might fit one of the [definitions] of anindividual with a disability, which is having a record of an impairment or beingregarded as having an impairment.

 

What’s the exact definition of a disability under the ADA?

Very broadly, it means a person has a physical or mental impairment thatsubstantially limits one or more major life activities; or has a record of thatkind of impairment; or is regarded as having that kind of impairment. The lawspecifically says that the term “qualified individual with a disability”does not include any employee or applicant who’s currently engaging in theillegal use of drugs.

 

So the ADA doesn’t protect a current drug user?

You can have a drug-testing policy and prohibit employees from using illegaldrugs–the ADA has no problem with that. You can certainly prohibit employeesfrom using drugs and alcohol at work or from coming to work under the influence.So if you have a policy prohibiting employees from possessing illegal drugs onthe premises and you find an employee who does, even if he says he has anaddiction problem, that doesn’t give him any insulation from rules prohibitingpossession on the premises.

 

Under the Ninth Circuit’s ruling, could the employee return after treatmentand ask to be rehired?

Yes, the argument would be: I’ve gone through rehabilitation and I’vecome back. If you exclude me solely by virtue of the conduct due to my priordisability, you’re acting on the basis of my record, and I’m protected onthat basis at this stage of the game.

 

Even if HR didn’t know that the employee had a substance-abuse problem?

Right. The employer may not have known that the employee’s low productivityor absences were related to drinking or drugs. Five years later, after goingthrough rehab, the former employee reapplies and says, “I know I had anabsenteeism problem, but that was due to my past [use].” That would besufficient even though there wouldn’t be a piece of paper in the employee’sfile necessarily.

 

Right now, as the ADA stands, if an employee comes to HR and says he or shehas an alcohol problem, what should HR do?

People who abuse alcohol can be considered disabled under the ADA, [if they]show their alcoholism substantially limits their ability to perform major lifeactivities. But if a current employee is experiencing lots of absences, way pastthe company standards, and the company decides to discipline or terminate herbecause of it, the employee can’t say: “You can’t do that, I’m analcoholic.” The employer can enforce standards relating to productivity andwork rules.

 

Once an employee completes treatment, how should HR address the situation?

If somebody has been allowed to take leave, they’ve self-identified andbeen through rehabilitation, they’re probably in a stronger position [to keeptheir job] after the rehabilitation than before. But if they’ve beenterminated prior to rehab or their admission that there’s a problem, they’renot automatically entitled to get their job back by any means. That’s what’sat issue in this case: What is the status of employees who’ve undergonesuccessful rehabilitation but have been terminated? Are they entitled to gettheir jobs back? Essentially, the Ninth Circuit is giving them a second chanceand putting them in a preferential position, whereas Raytheon is saying: “No,we don’t want to rehire people who have violated our work rules for whateverreason, and the law should not require it.”

 

How should employers covered by the Ninth Circuit [which includes all federalcourts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada,Alaska, and Hawaii] proceed as we wait for the Supreme Court to hear the case?

The Ninth Circuit, which tends to be one of the most liberal appellate courtsin the country, has been reversed very frequently in employment cases in thelast several years. And there’s some reason to think this might be reversed aswell. But it’s a gamble because the court could back up the Ninth Circuit,which would give a very viable action to somebody you would say no to [rehiring]today–someone who had a past alcohol or drug problem but also a record ofrehabilitation. The Ninth Circuit decision would give those folks a fairlystrong case against you for disability discrimination, and the failure to hirecould trigger back pay, compensatory and punitive damages, and attorneys’fees.

 

How should employers not covered by the Ninth Circuit proceed?

The problem comes about with someone no longer in your employ who is comingwith a [request to be rehired] and may have a record of an impairment. I thinkmost courts would agree that it would be reasonable to use six months or a yearas a period for which you’d exclude a former user. So did this person havethis addiction problem six months ago or 10 years ago? Say you fire somebodybecause of a positive drug test, they go through rehab, then come back twomonths later and say they’re clean. There’s a legal question as to whetherthey still could be looked at as a current user and excluded lawfully–versusthe person who’s been [sober] 10 years. A second thing to consider is the typeof job involved. If it’s a safety-sensitive job, other legal defenses may comeinto play. An employer has a good defense for excluding an individual who mayimpose a direct threat to the health and safety of others or himself–aschool-bus driver or someone at the controls of a nuclear plant. Those are twogood ways to evaluate the situations that may come up in the interim.

 The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce, May 2003, pp. 70-71 — Subscribe Now!