Under the provisions of the American with Disabilities Act (ADA), as well as under many parallel state laws, individuals who successfully have completed a supervised drug rehabilitation program and who are no longer engaged in the illegal use of drugs are protected from employment discrimination. However, courts that have reviewed cases under this “safe harbor” provision also have held that the provision applies only to individuals who have been drug-free for a “significant” period of time.

Recently, theFourteenth Court of Appeals for the State of Texas addressed a situation in which an employee who was asked to resign immediately upon returning from a five-day hospital stay for drug dependency claimed that she had been treated in a discriminatory manner, because she had been drug-free for five days and, therefore, was “disabled” under the law. The court held that five-day period not to have been sufficient to trigger any “safe harbor” provision under the ADA or Texas law. Melendez v. Houston Independent School District, Texas App., No. 14-2010-20517, December 5, 2013.

Earline Melendez filed a lawsuit against her employer, Houston Independent School District (HISD), claiming disability discrimination after she was asked to resign from her position as a school clerk. Melendez alleged that the request for resignation came after her school principal learned that Melendez had spent five days at an in-patient program for opiate addiction. Melendez conceded that she had been addicted to pain killers since a back injury in 2009, and at times had consumed more than five times the prescribed dose. Melendez argued, however, that she had been clean at the time that she was asked to resign, as she had just completed a 5-day in-patient rehabilitation program and, therefore, was protected by the law’s “safe harbor” provision covering individuals who have been drug free for a significant period of time.

The Texas Commission on Human Rights Act (TCHRA) excludes, from the definition of “disability” under that Act, a “current condition of addiction to the use of alcohol, a drug, an illegal substance, or a federally controlled substance.” HISD argued that Melendez was not “disabled” because she admitted that she was addicted to pain medication and, therefore, was excluded from the protections of the TCHRA. Melendez responded that the safe harbor provision should apply, however, since she was not “currently” addicted on the date of her constructive discharge, and had been drug-free for the previous 5 day period.

Although neither the TCHRA nor the ADA defines the term current addiction, the Texas Court of Appeals relied on a Fifth Circuit case construing the ADA to find that “current use” of illegal drugs means that “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” Under that rationale, mere participation in a rehab program will not allow an individual to evade the ADA’s “current use” exclusion if the most recent drug use occurred recently enough to indicate to an employer that continuing use may be a real and ongoing problem.

Because of the confusion surrounding the issue of whether an individual’s addition is “current” or not, and therefore whether or not the ADA’s safe harbor provisions will apply, employers should review the level of responsibility entrusted to the employee, his or her past performance, and the level of competence required to do the individual’s job, in addition to reviewing the recency of the individual’s drug or alcohol use, before imposing discipline or termination based on the presumed “current” status of the addiction.