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‘Direct threat’ no longer required to bar former substance abusers

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in Discrimination and Harassment,Employment Law,Human Resources

After the 1989 Valdez oil spill cost it billions of dollars, Exxon tightened its policy on recovered substance abusers. It permanently removed any employee who had been treated for drug or alcohol abuse from safety-sensitive jobs with little supervision.

As a result, some employees who had undergone treatment decades earlier were demoted. The U.S. Equal Employment Opportunity Commission sued Exxon on their behalf, claiming Exxon's policy violates the Americans with Disabilities Act (ADA). The EEOC argued that an employer should have to prove the ex-abuser poses a "direct threat" to the safety of others.

In a stunning reversal of EEOC guidance, the 5th Circuit agreed with Exxon. The court said nothing in the ADA's legislative history or case law justifies the EEOC's position that a "direct threat" standard must be used in every case. Employers need only show that their across-the-board policy on ex-substance abusers is job-related and is a business necessity.

This greater latitude applies only to a company's general policy. When a special safety standard is applied to a specific employee, the company must still prove the worker poses a direct threat to safety. (EEOC v. Exxon, No. 98-11356, 5th Cir., 2000)

Advice: You no longer have to prove that a recovered substance abuser poses a direct threat to safety to block him from a job, as long as you can show your policy is a valid business necessity.

This first decision by an appeals court overruling this EEOC interpretive guidance gives you more freedom to set and enforce personnel policies on safety.

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