It seems anomalous for an individual to be both a former and current user of illegal drugs at the same time. But perhaps not so anomalous under the ADA, according to the Tenth Circuit’s recent decision in Mauerhan v. Wagner Corporation.
The ADA exempts from its protection those who are current users of illegal drugs, but protects those who have successfully completed a drug rehabilitation program and are no longer engaging in the illegal use of drugs. When an individual leaves a drug rehabilitation facility after completing a rehabilitation program, is the individual a current or former user of illegal drugs? The court held that there is no “bright line” to distinguish a current from a former user. The court held that an employee who had not used drugs during his one month inpatient rehabilitation program was nonetheless a current drug user under the ADA when he applied for his former position the day after completing the program. Contrary to what the terms may suggest, the distinction between current and former user “is not based solely on the number of days or weeks that have passed since an individual last illegally used drugs,” the court said. Rather, the test is based on the employer’s perspective: someone no longer using drugs may nonetheless be “currently engaging in illegal use of drugs” under the ADA if the use “was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”
As Humpty Dumpty told Alice in Through the Looking Glass: “When I use a word…it means just what I choose it to mean – neither more nor less.” And under the ADA, when it comes to users of illegal drugs, former may mean current.