The Americans with Disabilities Act prohibits discrimination against employees with a record of disability, including former drug dependency. However, the ADA also excludes current drug users from the definition of protected disabled persons. At what point does a recovering drug user stop being considered a current user? A new case from the Tenth Circuit Court of Appeals refuses to adopt a bright line test, but provides employers with guidance regarding when the ADA's protections apply.

In Mauerhan v. Wagner Corp., the plaintiff was terminated after testing positive for illegal drugs. He entered an inpatient drug rehabilitation program, and reapplied for employment with Wagner the day after he was discharged from the program. When Wagner refused to consider his application, he sued, alleging ADA discrimination.

The Tenth Circuit affirmed summary judgment for the employer. The court noted that the ADA does not set a clear boundary line for when a current drug user becomes a protected recovering user. Instead, the Tenth Circuit said that employer can exclude persons from consideration for employment where the drug use appears to be an ongoing concern. This analysis can include review of the severity of the employee's addiction, the prognosis provided by the rehabilitation center, and the relapse rate for similar addiction problems.

In this case, the court deemed the drug abuse to be of a sufficiently recent nature that the problem was considered ongoing. The rehab report indicated that the plaintiff required continuing supervision post-discharge, and the employer was entitled to conclude that the drug abuse issues continued to be current. Employers faced with similar situations should engage in an active, documented review of all circumstances before drawing a conclusion regarding the person's eligibility for employment.