Gotta Pass the Smell Test, Too


A Florida court recently let a claim proceed under the Americans with Disabilities Act (“ADA”), even though the employee had been terminated for a positive drug test and the ADA has a specific exclusion for current drug users. In legal terms, the court denied the employer’s initial motion to try and have the case dismissed – so this is not a decision about whether the employee’s claim wins – but simply a decision concluding that the former employee has presented a possible claim. However, in more practical terms, the employer’s actions may not have passed the court’s smell test.

Basing a termination on a positive drug test may feel like a slam dunk in terms of legitimate reasons for a termination. So why did it not work here to require immediate dismissal of the claim? It is likely because of some alleged facts and some legal ambiguity, but also probably because the employee’s version of the facts simply raised too many red flags.

The employee’s story painted a picture of being picked on and held to a different standard. According to his allegations, the employee had previously complained about racial remarks from a supervisor and claimed that after his complaint things worsened. The greater scrutiny and unwarranted discipline prompted a flare-up of his depression and anxiety, and his drug use was sparked by the these symptoms. Put differently, the employee blamed his drug use on the disability and blamed his disability flare-up on the employer’s bad actions.

In terms of the ADA, the employee requested the discipline for the drug test be waived as a reasonable accommodation or that he be provided with counseling. He alleged that white, non-disabled employees were not given discipline and/or received counseling in similar situations with positive drug test results. Because others with similar drug test results were allegedly not terminated, the employee claimed the real motivation for his termination was his disability.

Why would the court not rely on the ADA exclusion for current drug users? One reason is the statute does not define what that means. This court, relying on other decisions, said that instead of a bright line test, the real issue is “whether the drug use was recent enough” to let the employer reasonably conclude that ongoing drug use is a problem. In the recent Florida decision, the employee alleged he had never been under the influence while on duty, had utilized the Employee Assistance Program and had not used drugs for a significant period of time (the decision does not give details about the type of drug at issue or possible time frames for use). The court decided it was “plausible” that the employee was not a “current” user at the time of the termination.

Just a reminder – even a really good reason for termination that feels as though it is tied up with a bow can look pretty bad if the rest of the package is sloppy.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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