Can employers fire drug addicts? Or are they disabled and protected under the ADA and the Texas Commission on Human Rights Act (TCHRA)? That depends on individual circumstances and the definition of “current” addiction.
As this recent case shows, an employee doesn’t have to have the heroin needle in her arm or the marijuana bong in her hand to be considered a current drug user. And current users aren’t protected unless they have received treatment and have been clean for at least a reasonable period of time.
Recent case: Earline was a clerk for the Houston school system. When police arrested a group of students for an off-campus burglary, she prepared suspension forms and gave them to the students. Earline, who claimed she had permission, signed on behalf of school officials. When challenged, she began behaving strangely.
Earline had previously suffered a back injury. She blamed her disoriented state on having taken prescription pain pills and muscle relaxants on an empty stomach. She then spent about a week in the hospital battling an opiate addiction. It seems she had been taking far more drugs for her back problems than had been prescribed—sometimes between 20 and 40 pills per day.
When she returned to work, she was offered the opportunity to resign, which she did. But then she sued, alleging disability discrimination based on past drug addiction.
The school district argued the addiction wasn’t past but current. Therefore, it wasn’t protected under the TCHRA.
The court agreed and dismissed the case. Earline had been actively abusing prescription drugs a few days before being discharged, and her employer had every reason to question her ability to perform her job given her condition. (Melendez v. Houston Independent School District, No. 14-12-00946, Court of Appeals of Texas, 14th District, 2013)
- Tell supervisors: Enforce attendance rules equally—or prepare for court
- Develop, implement and publicize policies that encourage employees to report harassment
- Don't even try to argue slur wasn't offensive
- After FMLA leave, don't presume future needs
- Be ready to intervene if supervisor who shows bias needs an attitude adjustment