A deaf employee who tested positive for hydrocodone – but could not produce a prescription for the drug – was not discriminated against due to his disability when his employer fired him.  Phillips v. PPG Industries, Inc.Case No. 5:14-CV-1274 (N.D. Alabama Nov. 24, 2015).

Phillips was employed as a “finisher” in a manufacturing facility that manufactured windshields and windows for the commercial, regional and military aviation industries. He lost his hearing when he was 20 years old. PPG had a drug testing policy that provided that the first time an employee tested positive for drugs, the employee would be required to enter into a “Rehabilitation Agreement” in order to remain employed. Among other things, such an agreement required follow-up drug testing after the completion of a treatment program. Any subsequent positive drug test results would lead to termination of employment.

Phillips failed a drug test in 2000 and was subject to a Rehabilitation Agreement. He was required to undergo follow-up drug testing for a period of five years and understood that his employment could be terminated if he tested positive a second time. After that five-year period ended, Phillips continued to be selected periodically for random testing pursuant to company policy.

In May 2013, Phillips was selected for a random drug test and was given a hair test. The test result was positive for hydrocodone, but Phillips did not have a prescription for hydrocodone. His employment was terminated.

Phillips asserted that he was subjected to disability discrimination in violation of the Americans with Disabilities Act because he was subjected to drug testing more frequently than non-disabled employees and because he was terminated for failing the drug test when non-disabled employees were not. His claims were dismissed because: (1) he was not a qualified individual with a disability due to his current illegal use of drugs; (2) he could not show that his termination was linked in any way to his hearing loss; and (3) he could not show that any non-disabled employees were not terminated for failing a second drug test.