An employee who twice failed to complete a substance abuse treatment program was not protected by either the ADA or FMLA, according to the Fifth Circuit. Shirley v. Precision Castparts et al (5th Cir. August 12, 2013). The employer terminated the employee for leaving a treatment program prior to being properly discharged, as required by its drug free workplace policy.
The plaintiff was not protected by the ADA because he was a “current user of illegal drugs,” according to the court. An individual who has used illegal drugs “in the weeks (or even months) preceding the adverse employment action” may be deemed “currently engaging” in that use, the court explained. This is consistent with a Tenth Circuit decision we posted about previously. See “Former Drug User May Be Current Drug User Under the ADA.”
The court also rejected the plaintiff’s claim that he was entitled to the ADA’s safe harbor for individuals who have successfully completed a supervised rehabilitation program and is no longer engaging in the illegal use of drugs. In rejecting this argument, the court held that “the mere fact that an employee has entered a rehabilitation program does not automatically bring that employee within the safe harbor’s protection.” The court said that only individuals “who have been drug-free for a significant period of time” can obtain protection from the safe harbor.
The court also rejected the plaintiff’s claim that his employer violated the FMLA by failing to reinstate him after his stint in rehabilitation. The court explained that the right to reinstatement is not guaranteed, that the plaintiff was terminated for violating the company’s drug-free workplace policy, and to conclude that the plaintiff was denied an FMLA right to which he was entitled “strains credulity to the breaking point.”