Whether Employee is Currently Engaged in the Illegal Use of Drugs: Case-by-Case Analysis

The Tenth Circuit Court of Appeals has held that an employer did not violate the ADA when it refused to rehire a former employee who completed a one-month drug rehabilitation program, because the employer determined that the employee failed to demonstrate he was not “currently” engaged in the illegal use of drugs when the employer made the decision not to rehire. In this case, the employee claimed that he was not rehired because of his drug addiction in violation of the ADA. The Court disagreed, however, and affirmed the lower court’s factual findings that the employee was a current drug user at the time he asked to be reemployed and that abstaining from using drugs for one month in this case was insufficient to earn the protection of the ADA. The Court held that the issue of whether an employee is “currently engaging” In drug use under ADA must be decided case-by-case. Mauerhan v. Wagner Corp., Nos. 09-4179 & 09-4185 (10th Cir. Apr. 19, 2011).