"Federal Disability Law Protects Rehabilitated Addicts"
by Richard S. Rosenberg and John J. Manier

In the months since September 11, the Bush administration has sought to educate Americans about how the purchase and use of illegal drugs gives financial support to terrorist networks. In a series of highly-stylized television advertisements, the White House has asked all of us to do our part in fighting the war on terrorism by helping to eradicate drugs from America.

In the midst of all this, the 9th Circuit recently sent a confusing and disturbing message to employers who seek to root out illegal drug use at work. The court ruled that Hughes Missiles Systems Company may be required to rehire an admitted cocaine addict, Joel Hernandez, who it had lawfully forced to quit in 1991 when he failed a drug test. Hernandez v. Hughes Missiles Sys. Co., 2002 DJDAR 6518 (9th Cir. June 11, 2002).

Hernandez arose under the Americans with Disabilities Act, which expressly allows employers to discipline and discharge employees who illegally use drugs. 42 U.S.C. Section 12114(c). However, in an opinion by Judge Stephen Reinhardt, the court expansively construed the Act to outlaw company policies against rehiring "rehabilitated" addicts - even if they were terminated for flunking drug tests.

In January 1994, nearly three years after quitting, Hernandez reapplied at Hughes for his former position of Calibration Service Technician and the lower-level job of Product Test Specialist. When Hughes refused to rehire him, Hernandez sued in an Arizona federal district court. Hughes successfully moved for summary judgment, but the 9th Circuit reversed.

The court initially found that Hernandez was protected under the Act because he was a "qualified" individual with "a record of" disability when he reapplied at Hughes. Drug addiction may be a "disability" if it "substantially limits one or more ... major life activities." 42 U.S.C. Section 12102(2). The court said it was undisputed that Hernandez's "positive drug test formed a record of ... addiction."

Hernandez had the burden of showing that Hughes actually rejected him because of his record of disability. He pointed out that in response to his discrimination charge with the Equal Employment Opportunity Commission, a Hughes manager stated that Hernandez "was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation."

Hughes asked the court to disregard this position statement and instead credit the testimony of a labor relations employee, Joanne Bockmiller, who rejected Hernandez's 1994 application. Bockmiller testified that when she made this decision, she did not even know the reasons for Hernandez's 1991 resignation or his history of drug use, and that she based her decision solely on Hughes's unwritten policy of not rehiring ex-employees who had been terminated or forced to quit due to misconduct.

However, the 9th Circuit found that even when looking solely at Bockmiller's testimony, there was a triable issue as to whether Hernandez's record of drug addiction played a role in the 1994 hiring decision. While reviewing Hernandez's application, Bockmiller admittedly pulled his personnel file, which included his drug test results. She also saw a letter from Hernandez's Alcoholics Anonymous counselor, who stated that Hernandez was sober and strongly committed to his recovery.

The court concluded that Bockmiller's testimony raised an inference that she knew Hernandez was a recovering alcoholic and that she learned of his positive drug test from his personnel file. Yet, the court never explained how these facts, without more, could support an inference that Bockmiller knew Hernandez was a recovering cocaine addict and that she acted on such information.

The 9th Circuit also indicated Hernandez was "qualified" in 1991 because Hughes rated his "ability" as "good." However, the court disregarded 42 U.S.C. Section 12114(a), which states that "the term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."

Hughes claimed Hernandez was not "qualified" for rehire because he failed the exam for the Product Test Specialist job in 1999, pursuant to an offer by Hughes. However, Hughes did not let Hernandez take this test in 1994 when it rejected his application. The court therefore found a triable issue as to whether Hernandez could have passed the exam in 1994, and that his prima facie evidence precluded summary judgment.

The burden then "switched to Hughes to offer a legitimate nondiscriminatory reason for its actions." Although the employer almost always satisfies this burden in job bias cases, the 9th Circuit held that Hughes failed to do so here.

The court conceded that Hughes's policy of refusing to rehire employees who were terminated for misconduct is "not unlawful on its face." Yet, it ruled that this policy per se "violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction."

In support of this holding, the court cited to 42 U.S.C. Section 42114(b), which states that the Act does not exempt individuals who no longer illegally use drugs and: (1) have been rehabilitated; (2) are "participating in a supervised rehabilitation program"; or (3) are "erroneously regarded as" using drugs. The court also quoted an Equal Employment Opportunity Commission Technical Assistance Manual which states that "[a]n employer may not discriminate against a drug addict who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction."

However, neither of these authorities precludes an employer from rejecting an applicant based on prior job-related misconduct, simply because it involved illegal drug usage due to addiction. Indeed, while the Act protects current and former addicts, it had never been interpreted to immunize them from the consequences of drug-related misconduct, even when they apply for rehire.

The court went further and held that Hughes would have violated the Act even if Bockmiller was unaware of Hernandez's record of drug addiction. The court reasoned that such ignorance "would have been due solely to Hughes's unlawful policy which shields its employees from the knowledge that an employment decision may be illegal."

Inexplicably, the court failed to discuss 42 U.S.C. Sections 12112(b)(6) and 12113(a), which allow employers to use "qualification standards" and other selection criteria that are "job-related" and "consistent with business necessity," even if they tend to screen out disabled persons. The court also ignored Section 12114(c)(4), which permits employers to hold illegal drug users to the same qualification standards as other employees, even if "any unsatisfactory performance or behavior is related to ... drug use."

Under Section 12114(c)(4), the 9th Circuit previously upheld an employer's general absenteeism policy as applied to an alcoholic. Brown v. Lucky Stores, 246 F.3d 1182 (9th Cir. 2001) (not cited in Hernandez). Since many employers have policies similar to Hughes's, the "qualification standards" defense may provide a valid basis for distinguishing Hernandez in the future.

Judge Reinhardt obviously disapproved of Hughes's policies. In a footnote, he found it "interesting to note that Hughes puts a long time employee who is fired for drug use and has since been rehabilitated in a less favorable position than a new applicant who is a current drug user." Hughes requires all new job applicants to take drug tests, but allows applicants who fail the test to reapply after 12 months. "In contrast, a long time employee who slips is barred forever," Reinhardt stated.

This latter comment is curious at best. Hernandez obviously did not "slip"; he was admittedly addicted to cocaine. Presumably, a person who flunks a drug test because of a mere "slip" is a casual user, not an addict. The disability bias laws provide "limited protection ... for recovering drug addicts," but do not protect casual users. See Technical Assistance Manual, Sections 8.1, 8.5.

Of course, there is nothing "limited" about Reinhardt's opinion in Hernandez. While it allows employers to discharge employees for job-related misconduct arising from drug addiction, it requires those same employers to give preferential treatment to such discharged employees if they are later "rehabilitated."

The Hernandez holding could be extended to other disabilities, with even more troubling results. For example, an employer who discharges a bipolar employee for committing workplace violence may have to rehire that employee if and when the mental disability is successfully treated.

Moreover, the quicker the employee can "recover," the shorter he or she may remain unemployed. The 9th Circuit in Brown held that one day in alcohol rehabilitation was not enough, but that an employee who avoids drug or alcohol use for "a sufficient time" may utilize the Act's "safe harbor" provision. "In contrast," to paraphrase Reinhardt, an employee who "slips" for any reason other than a disability may be "barred forever."

It remains to be seen whether Hernandez joins the list of disability bias opinions by Reinhardt which are later overturned. See Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045 (2002); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). But see Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001), cert. denied, 122 S. Ct. 1592 (2002). For now, employers will have to tread cautiously when reviewing rehire applications from employees who departed because of disability-related misconduct.