Imagine your employee tells you he has a drug problem and wants help. Under your policies, you give time off for treatment. The employee detoxes, but leaves the program before “treatment.” Imagine you send him back to complete the program and he leaves again after one day. Now what? His drug addiction is an ADA “disability.”

A recent case gives one answer. Shirley v. Precision Castparts Corp., No. 12-20544 (5th Cir. Aug. 12, 2013). In this case, the facts are those imagined above. The employee nearly overdosed on Vicodin, took leave to receive treatment for drug addiction, and prematurely dropped out of the program—twice. The employer discharged him rather than let him return to work, anticipating further drug use. The court held the employee is not a “qualified individuals” because he is “currently engaging” in illegal drug use. Current use includes use that is “sufficiently recent” to justify the employer’s belief that the abuse remains a problem.

An employer might have a reasonable basis to expect continued drug use when an employee fails a drug rehabilitation program. The employee might claim he will kick the habit on his own, but you don’t have to run an unreasonable risk of drugged employees running your heavy equipment.