March 27, 2015 Practice Points

Three-Month Drug Abstention Is "Currently Engaging" under ADA

The District Court of Puerto Rico held that a plaintiff who had abstained from illegal drug use for three months may be considered to be “currently engaging” in such use under the ADA.

By John Stock

The U.S. District Court for the District of Puerto Rico recently dismissed a terminated employee’s Americans with Disabilities Act (ADA) discrimination claim on the basis that she was “currently engaged” in the illegal use of drugs—despite the allegation of her complaint that she had ceased her illegal use of drugs three months prior to her termination. Quinones v. Univ. of Puerto Rico, D.P.R. No. 14-1331 (JAG) (Feb. 13, 2015). The plaintiff’s current illegal drug use did not constitute a “disability” under the ADA, and the effects of that drug use established that she was not a “qualified” disabled individual under the ADA. However, the plaintiff’s complaint did state a viable claim for retaliation under the ADA.

Underlying Facts 
In July 2011, plaintiff Dr. Karina Quinones was admitted to the ophthalmology residency program of the University of Puerto Rico School of Medicine (UPR). In March 2011, prior to her admission to the residency program, Quinones had enrolled herself in an alcohol-rehabilitation program to treat her alcoholism. Upon release from that program with a number of prescriptions, Quinones began to use the drugs in a manner not prescribed by her physician.

Once enrolled in the residency program, Quinones developed an addiction to Soma, Ambien, and Adderall. Her addiction to Adderall caused visual disturbances, speech problems, and dizziness. As a result of her active addiction to those prescription drugs, the plaintiff began having problems complying with the requirements of the residency program. She met several times with a committee overseeing the program to discuss her performance. However, on September 12, 2012, the plaintiff was terminated from the program.

On September 27, 2012, Quinones sued UPR in the Superior Court of Puerto Rico to gain readmission into the program. In response, UPR agreed to stay its termination of the plaintiff and granted her a temporary leave while UPR considered her request for a reasonable accommodation. On April 29, 2013, UPR rejected Quinones’s accommodation request because: (1) she could not comply with the essential functions of her position; (2) she had a high risk of relapse; and (3) she would require constant supervision, which would impose an undue hardship on the residency program. Quinones sued UPR (and certain UPR employees) asserting claims, inter alia, of disability discrimination and retaliation under the ADA. The UPR defendants moved to dismiss the complaint for failure to state a claim pursuant to FRCP 12(b)(6).

Disability Analysis 
The district court dismissed Quinones’s disability-discrimination claim because “current,” active illegal drug use does not constitute a “disability” under the ADA.

42 U.S.C. §12114(a) expressly provides that “ . . . a qualified individual with a disability shallnot 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.” (emphasis added).

42 U.S.C. §12114(b) provides a “safe harbor” for “recovering” drug addicts:

Nothing in subsection (a) of this section shall be construed to exclude as a qualified individual with a disability an individual who:

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use[.] (emphasis added).

The statutory provisions do not set forth a bright-line test for an employer to determine if an employee is “currently” engaging in illegal drug use or is “no longer engaging” in such use. Is an employee “currently” engaging in illegal drug use if he smoked a joint a week ago, a month ago, or a year ago? To answer that question, a number of courts have adopted a conceptual standard that an employee may be considered to be “currently” using drugs if the employer has a “reasonable belief” that the drug abuse remains an “ongoing problem.” See Mauerhan v. Wagner Corp., 649 F.3d 1180, 1187 (10th Cir. 2011); Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 856 (5th Cir. 1999).

With respect to defining the length of time necessary for abstinence to dispel a conclusion of active drug use, courts have found that an employee is still “currently” engaging in illegal drug use if his or her period of abstinence from drugs is one month (Shafer v. Preston Mem’l Hosp. Corp., 107 F.3d 274, 278 (4th Cir. 1997), abrogated other grounds, Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)); six weeks (McDaniel v. Miss. Baptist Med. Ctr., 877 F.Supp. 321, 328 (S.D. Miss. 1995)); seven weeks (Baustian v. State of La. (910 F.Supp. 274, 277 (E.D. La. 1996)); and two months (Vedernikov, M.D. v. W.Va Univ., 55 F.Supp. 518, 522–23 (N.D. W.Va 1999)).

Conversely, a court has indicated that one year of abstinence establishes that an employee is no longer “currently” engaged in illegal drug use. U.S. v. Southern Mgm’t Corp., 955 F.2nd 914 (4th Cir. 1992).

In the Quinones case, the plaintiff’s complaint asserted that she had abstained from illegal drug use for “a little over three months” at the time she was fired. The district court held that this use was recent enough for UPR to conclude that the plaintiff was not a “recovering drug user” under the ADA safe-harbor provision. Thus, Quinones’s “current” drug use was not a disability under the ADA.

Qualification Analysis
The district court held that Quinones’s complaint would have to be dismissed on the separate ground that she was not a “qualified” disabled person. The essential functions of the ophthalmology residency program require a resident to perform delicate and potentially hazardous procedures involving patients’ eyes. The plaintiff’s admitted “visual disturbances, speech problems[,] and dizziness” caused by her illegal drug use made it clear that she could not perform the essential functions of the job.

Retaliation Analysis
Incredibly, the Quinones court held that the plaintiff’s complaint did state a legally sufficient claim for retaliation under the ADA—despite the fact that the plaintiff was neither “disabled” nor “qualified” for the residency position.

The district court held that there was, plausibly, and at the pleading stage, a causal connection between Quinones’s filing of her ADA claims and her termination. The court concluded that there was sufficient “temporal proximity” between her September 28, 2012, initial complaint, UPR’s October 9 temporary rescission of the plaintiff’s termination, and UPR’s ultimate termination of the plaintiff on April 29, 2013, to establish a causal connection for a retaliation claim at the pleading stage.

The district court’s finding that there could be a causal connection between Quinones’s termination and the filing of her ADA claims is surprising in light of the fact that the court was required, under 42 U.S.C. § 12114(a), to conclude that UPR’s termination of the plaintiff was “on the basis of [her ‘current’ illegal drug] use.” It is fundamentally inconsistent for the court to conclude that UPR did not engage in disability discrimination because it terminated Quinones on the basis of her current illegal drug use, but then also conclude that there is a causal connection between her termination and Quinones’s protected activity for proposes of an ADA retaliation claim.

John Stock, Benesch Friedlander Coplan & Aronoff LLP, Columbus, OH

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