Published Date: 04/28/2014
By Pat Rountree
There was recently discussion on the CAI Members List Serve about whether other employers considered rehiring employees terminated for testing positive on a drug test and if so, after what length of time. Responses on past Policies and Benefits surveys have revealed that employers’ decisions on this vary from not being eligible for rehire to not being eligible for some specified period of time.
There was a court case several years ago where a former employee who had been terminated for drug use applied for an open position. He was told he was not eligible for rehire. He sued the employer for disability discrimination. Rehabilitated drug users are protected under the Americans with Disabilities Act (ADA). The employer prevailed because their policy was that no one who was terminated for cause was eligible for rehire.
Equal Employment Opportunity Commission (EEOC) ADA Guidance does address inquiries about illegal drug use. It states as follows:
An individual who currently uses drugs illegally is not protected under the ADA; therefore, questions about current illegal drug use are not disability-related inquiries. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). However, questions about past addiction to illegal drugs or questions about whether an employee ever has participated in a rehabilitation program are disability-related because past drug addiction generally is a disability. Individuals who were addicted to drugs, but are not currently using drugs illegally, are protected under the ADA. 29 C.F.R. §1630.3(b)(1),(2)(1998).
Since questions about past addiction or participation in a drug rehabilitation program are disability related, those questions can only be asked post offer. If you choose to make those inquiries, it is recommended that you ask all applicants post offer and not just a former employee who was terminated for a positive drug test as that may indicate you considered them to have a disability (drug addiction).
If you have questions on this issue, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.