A Capehart Scatchard Blog

Employee Who Entered Drug Rehab Program Was Not Automatically Protected from Adverse Employment Action When He Left the Program Early

By on January 17, 2014 in ADA with 0 Comments

Bryan Shirley worked for Wyman-Gordon Forgings, L.P. (“W-G”) as an operator of the largest extrusion press in the world.  Company policy required that any employee who should develop a problem with drugs or alcohol must confidentially inform the HR manager in order to pursue treatment.  Failure to comply with treatment could subject the employee to discharge.

Shirley suffered a near overdose in November 2009.  He requested a medical leave to be treated for his addiction.  He entered a program in Houston, Texas, involving two steps: first, cleansing the body of drugs, and second, undergoing treatment to curb the need for the drug.

Shirley completed the detox portion of the program on December 5, 2009.  Against the recommendation of his treating doctor, Shirley sought to be discharged before completing the second portion of the program.  He saw his physician, who gave him a return-to-work note on December 9, 2009.  The HR representative informed Shirley that his early departure from the program was grounds for termination under the company’s drug-free workplace policy.  The company allowed Shirley to reenter the program to complete the second phase.

After the second admission to the program, Shirley tested positive for hydrocodone on readmission.  He admitted to taking Vicodin following his initial discharge.  After only one day of detox, he checked himself out again.  A few days later the company fired Shirley for twice failing to complete the program.  Shirley sued under the ADA and argued that he should be protected from job termination because he was participating in a rehabilitation program and had a covered disability, namely drug addiction.

The district court ruled against Shirley, and the Fifth Circuit Court of Appeals affirmed.  The court noted that current users of illegal drugs are not protected by the ADA.  It said that someone who had used illegal drugs in the weeks or even months preceding the adverse employment action may be considered a current user of illegal drugs.

Shirley argued that he was participating in a supervised rehab program and was no longer engaging in illegal drug use when he was fired.  The court said that the mere fact that he was in a program did not mean he was automatically protected under the ADA.  The court said that a significant period of recovery is needed for an employee to be protected under the ADA.

As the district court noted, Shirley’s refusal to complete an inpatient treatment program, his insistence that he remain on an opiate pain reliever, and his continued use of Vicodin following detox ‘supported a reasonable belief that continued drug use was still an on-going problem at the time W-G terminated his employment.’

This case may be found at Shirley v. Precision Castparts Corp., Wyman-Gordon Forgings, L.P., 726 F.3d 675 (5th Cir. August 12, 2013).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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