Ninth Circuit Rules on Hiring “In Recovery” Applicant

The Ninth Circuit recently held that an employer has the right to refuse to hire an applicant who failed a drug test and then reapplied later while “in recovery”. Santiago Lopez applied for employment at the Pacific Maritime Association but failed the company’s mandatory drug test. Pacific Maritime has a “one-strike” rule for applicants – fail the drug test, and you suffer a lifetime ban on employment at the company. After the first rejection, Lopez entered a certified drug-rehab program, and then reapplied at Pacific Maritime while still in the rehab program. Because of its “one strike” rule, Pacific Maritime again rejected Lopez, who sued alleging discrimination under the Americans with Disabilities Act. The Court sided with the employer because the rule applied to all applicants at the time of their application. Note that the ruling might have been different if the applicant had been in recovery at the time of the first application. Lopez v. Pacific Maritime Assoc., No. 09-55698(9th Cir. 2011)