Under the Americans With Disabilities Act (“ADA”), an employer cannot discriminate “against a qualified individual on the basis of disability.”   A person “currently engaging” in illegal substance use is not “qualified” under the ADA.  However, the ADA specifically exempts a person who, for example, has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs.

The question has often arisen for employers as to when a person is no longer engaging in the illegal use of drugs, since many people after completing a rehab program cease such use only to relapse, and it is not at all clear when a person is permanently “off” drugs as opposed to merely engaging in one episode after another.

A recent case discussed all the approaches taken by courts to answer the question which is asked by employers – when is it OK not hire such a person? The Court concluded that an employer should consider many factors – such as the severity of the problem, the relapse rate for the substance being abused, the level of responsibility given to the employee and level of competence required for the job, and past performance of the person.   

The central question that an employer must ask herself is – can we reasonably conclude that the substance abuse prevents the person from performing the essential functions of the employment position?