Human Resources News & Insights

Staffer dropped out of drug rehab twice: Could firm fire him?

How far do you have to go to help an employee who’s trying to wean himself off of drugs? 

Here are the details of the case:

Bryan Shirley worked at Wyman-Gordon Forgings as an operator for the largest extrusion press in the world.

Although he’d taken Vicodin as prescribed by his doctor for a long time to manage the pain from various work-related injuries, Shirley began visiting physicians at other pain clinics to collect additional prescriptions for the same drug. He also didn’t tell those physicians about his other prescriptions.

The company’s drug-free workplace policy stated that any employee who developed a problem with drugs or alcohol could confidentially inform the company’s HR manager to pursue treatment.

Under that policy, however, an employee “who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated.”

Following a near overdose in November 2009, Shirley requested medical leave, was approved by the firm’s HR pro and checked into rehab.

Two days later, however, he asked to be discharged, saying he felt overly confined in the program. A doctor at the rehab center provided Shirley with a discharge plan wherein he’d receive treatment from his primary care physician instead.

When Shirley returned to work a couple of days later, the HR pro who approved him for rehab noted that Shirley’s failure to finish the program was grounds for termination. However, the HR manager permitted Shirley to re-enter rehab and told him he’d be welcomed back at the company if he finished the program.

Shirley checked back into rehab, where the center found Vicodin in his system. After one day of treatment, he checked himself out again. The company fired him for twice failing to complete the program.

Did he qualify as ‘disabled?’

So Shirley sued, claiming the company discriminated against him based on his disability.

The court noted that the Americans with Disabilities Act (ADA) doesn’t protect people who are currently engaging in illegal drug use. The law does have a safe harbor, however, which says certain people can qualify as disabled, including a staffer who:

  • has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
  • is participating in a supervised rehabilitation program and is no longer engaging in such use; or
  • is erroneously regarded as engaging in such use, but is not engaging in such use.

The court had no problem ruling in favor of the company. Shirley didn’t qualify as disabled because he was still engaging in drug use — use that was “sufficiently recent” — at the time of his firing.

Sherman & Howard attorney Bryan Stillwagon had the positive takeaway for HR pros:

“An employer might have a reasonable basis to expect continued drug use when an employee fails a drug rehabilitation program. The employee might claim he will kick the habit on his own, but you don’t have to run an unreasonable risk of drugged employees running your heavy equipment.”

The case is Shirley v. Precision Castparts Corp.

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