Joel Hernandez had worked for Hughes Aircraft for 25 years when he tested positive for cocaine during a workplace drug test. Rather than be fired, he resigned. The company noted in his personnel file that he was terminated for personal conduct.
Two years later, Hernandez reapplied, offering letters from his pastor and drug counselor saying he was clean. He wasn't rehired because company policy prohibited rehiring employees who left for violating company rules. He sued, alleging disability discrimination.
The company argued that the rehire decision couldn't have been discriminatory because the hiring manager didn't know why Hernandez had left. But a federal appeals court let the case go to trial, saying the company's "no rehire" policy itself violated the Americans with Disabilities Act (ADA). (Hernandez v. Hughes Aircraft Sys. Co., No. 01-15512, 9th Cir., 2002)
Advice: It seems twisted to think that you could violate the ADA by refusing to rehire an ex-employee who tested positive for drugs. But, at least in the employee-friendly 9th Circuit, that's the case.
You can fire current users of illegal drugs, they're not protected by the ADA. But former and recovering drug addicts are protected. And you can't deny re-employment based on a person's record of disability. So while this employer's policy wasn't outwardly discriminatory, its effect was.
To protect yourself, ask for proof of successful rehabilitation and require a pre-employment drug test.
Thanks to a recent Supreme Court ruling, you can refuse a job to a person if you can show that his disability threatens his own health or the safety of your workplace. (YATL July 2002) But if a former worker passes your tests and has evidence that he's truly drug-free, you'll have to consider him for the job.
You & The Law offers a free, two-page report, Drugs in the Workplace, which includes advice on writing a policy, handling rehab and starting drug testing. To have it e-mailed to you, send an e-mail request to YATLreport@nibm.net and put "Drugs" in the subject line.
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