Simply entering into a drug treatment program does not protect employees under ADA says 5th Circuit.

Shirley v. Precision Castparts Corp. No. 12-20544 (5th Cir. August 12, 2013).

This is an ADA and FMLA case where a terminated employee alleges his drug addiction was a “disability” precluding his termination.

Brian Shirley was a twelve year press operator for Wyman-Gordon Forgings (“W-G”). After becoming addicted to Vicodin after several work related injuries Shirley was given the option of treatment under W-G’s drug-free policy. However, the policy clearly stated that an employee “who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated.” Shirley did not complete the program and was given a second chance to complete a detoxification and treatment program. He did not complete the second attempt at treatment.  He was then terminated and subsequently filed suit. W-G filed a motion for summary judgment which the trial court granted and Shirley appealed.

The U.S. Court of Appeals for the Fifth Circuit held that the ADA excluded from the definition of a “qualified employee” entitled to ADA protection any employee who is using illegal drugs. The court interpreted this to include the illegal or misuse of prescription drugs. The safe harbor provision of the ADA (which essentially says an individual undergoing treatment for the drug abuse can still be a “qualified” employee) is not applicable because Shirley did not complete the treatment. The exclusion applies to individuals “currently using” drugs, but this includes individuals who used drugs weeks or months before the decision is made, regardless of whether the employee was using at the time of the adverse employment decision. The safe harbor provision applies only to employees who have been drug free for a significant period of time. Merely entering into a program is not sufficient for protection. Therefore his ADA claims fail.  Shirley then argued that he should have been given more time for treatment under FMLA and was not given twelve weeks. However, Shirley was not terminated for taking leave but for failing the detox and treatment. .. twice. The Fifth Circuit rejected a “strict liability” standard adopted by other courts that employees have a right to reinstatement upon returning from leave and Shirley was not “otherwise entitled” to return from leave due to violations of the drug policy.  The court held  that “although denying an employee the reinstatement to which he is entitled generally violates the FMLA, denying reinstatement to an employee whose right to restored employment had already been extinguished—for legitimate reasons unrelated to his efforts to secure FMLA leave—does not violate the Act.” His FMLA claim must therefore fail.

The court seemed a little disturbed by the arguments made by Shirley and focused on the fact he did not complete the required treatment. In relation to Shirley’s arguments, the court used the phrases “strains credulity to the breaking point” and “[h]is logic is flawed beyond cavil.”  However, the court gave due consideration to the arguments and ultimately held summary judgment was proper for W-G.

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