The Americans with Disabilities Act specifically includes a “safe harbor” provision for individuals no longer abusing drugs and alcohol, specifically including individuals who have successfully completed a supervised rehabilitation program and are “no longer engaged in the illegal use of drugs.” While the Courts have declined to adopt a bright-line rule as to the number of days of sobriety required to remove an individual from being viewed as currently engaged in the use of drugs or alcohol, the 10th U.S. Circuit Court of Appeals has ruled that an individual who had completed a 28-day rehabilitation program would not necessarily be viewed as drug-free for purposes of the ADA. Mauerhan v. Wagner Corp., 10th Cir., Nos 09-4179 and 4185, April 19, 2011.

Peter Karl Mauerhan began his employment with Wagner Corporation from 1994. On June 20, 2005, Mauerhan tested positive for drugs at work, and was fired for violating the company’s drug policy. He was told that if could return to the company if he “got clean.” Between July 6 and August 4, 2005, Mauerhan was in an inpatient drug rehabilitation program. Upon his completion of the program, a counselor described Mauerhan’s recovery prognosis as “guarded.”

The day after completing the program, Mauerhan attempted to return to work. He was told that Wagner would re-employ him, but that he would not receive the same level of compensation as he had earned previously, and would not be servicing the same client accounts as before. Mauerhan refused to accept these terms and subsequently filed a lawsuit against Wagner, claiming a violation of the ADA based upon his status as a recovering addict. Wagner responded to the lawsuit by arguing that Mauerhan was a “current user” within the meaning of the ADA when he asked to be rehired and, therefore, was not a qualified individual with a disability for purposes of the Act. The district court agreed, and granted summary judgment in favor of the company. That decision was upheld by the Tenth Circuit on appeal.

The ADA prevents employers from discriminating against a “qualified individual” on the basis of a disability. For purposes of the ADA, an employee is not a qualified individual if he or she is engaging in the illegal use of drugs. However, the ADA specifically exempts from this group individuals who are participating in or who have successfully completed a supervised rehab program and are no longer currently engaging in such use (“the safe harbor provision”). While the courts have not fully defined the scope of the “currently engaging” exception, in this case, the Tenth Circuit specifically held that one drug-free month was insufficient to trigger the safe harbor provision for Mauerhan. It based that holding on its view that Mauerhan’s most recent active drug use (30 days prior to his application for reemployment) was sufficiently recent to justify Wagner’s concern that the drug use may remain an ongoing problem.

The Court further held that mere participation in a rehabilitation program is not enough to trigger the protections of the ADA. While such participation can bring an individual closer to qualification for the ADA’s safe harbor provision, that individual’s period of non-use of drugs must be sufficient to indicate that the drug use is no longer an ongoing problem.

In this case, Wagner presented evidence that Mauerhan’s prognosis for recovery from his addiction was “guarded” at the time that he requested to be re-hired, and they provided testimony from an addiction specialist that approximately three months of treatment would have been necessary for an addict like Mauerhan to reach a “threshold of significant improvement” in his addiction. Maurenhan failed to rebut this information, relying solely upon his participation and successful completion of the 28-day program. The Court found that because Mauerhan failed to rebut Wagner’s factual assertions, the Company was entitled to summary judgment

This case – like similar cases decided by other appellate courts – fails to provide a bright line test for when an individual falls within the safe harbor provision. However, the Tenth Circuit has indicated that an individual’s eligibility for the safe harbor must be determined on a case-by-case basis, and should take into account the circumstances of the individual’s drug use and recovery, and whether those circumstances justify a reasonable belief by the company that the person’s drug use is no longer a problem.

The Court provided some factors to be reviewed in such a determination, including the severity of the addiction, the relapse rates for the drug(s) being used, the level of responsibility entrusted to the employee, the employer’s performance requirements, and the employee’s past performance record. Before making any decision related to an individual in rehab, an employer should review these factors, in order to assure compliance with the ADA.