Mid-Atlantic Health Law TOPICS

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Does "Current" Drug Use Mean Yesterday, Last Week or Last Month?

After a nurse was confronted by her hospital employer about the theft of narcotics, she admitted ordering excess medicine and diverting it for her own use. She said she was addicted to the drug, but had never abused it on the job. The hospital placed her on a medical leave of absence, and helped her enter a drug rehabilitation facility After she completed the in-patient portion of her treatment, the hospital fired her.

The nurse claimed that her firing violated the Americans With Disabilities Act (ADA) and the Rehabilitation Act of 1973. She claimed that her drug addiction was a disability, and, therefore, could not be the basis of her firing, and that she was further protected from firing as a participant in a drug rehabilitation program.

The hospital contended that the nurse was not protected under the ADA because the law does not protect employees "currently" engaging in the illegal use of drugs. The hospital also argued that the statutory safe harbor found in the Rehabilitation Act for recovering addicts - which protects individuals who are participating in a supervised rehabilitation program and are no longer engaged in illegal drug use - was not applicable.

The Fourth Circuit, the federal appellate court with jurisdiction for Maryland, Virginia, West Virginia, and North and South Carolina, agreed with the hospital, in Shafer v. Preston Memorial Hospital. The court determined that, protecting this nurse from discharge because she was not fired until after she entered a treatment plan, would require an employer to catch the employee with "needle-in-arm or bong-to-mouth." The court found that this interpretation would result in "an absurd application of the statutory language."

The court noted that, under a prior decision, persons who had been drug-free for more than a year were not considered to be "currently" using drugs, and therefore were protected under the ADA and the Rehabilitation Act. However, the court concluded that the term "current" was not to be limited to the use of drugs within a matter of days or weeks before the employer's action, and that the statutes do not protect an employee's illegal use of drugs during the weeks or months prior to firing.


September 21, 1997




Kellner, Robert C.


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