The ADA does not protect an employee who is currently illegally using drugs, but the statute does protect an employee who is in or has completed rehab successfully and is no longer illegally using drugs (the ADA's "safe harbor" provision). Generally speaking, if an employee on FMLA leave still meets the requirements for the job, the FMLA additionally guarantees the employee's reinstatement. But what can an employer do when the employee and the rehab facility disagree about the course of successful treatment? A recent Fifth Circuit decision reviews the boundaries of the statutory protections under such circumstances. Shirley v. Precision Castparts Corp., ---F.3d----, 2013 WL 4051760 (5th Cir. Aug. 12, 2013).

Employee Bryan Shirley twice entered an in-patient rehabilitation program for abuse of prescription medication. Both times, he successfully detoxed but left the program prior to completing the treatment phase. His employer terminated him after he prematurely left the program the second time, and the employee sued for violations of the ADA and the FMLA.

The employee argued that the ADA's safe harbor provision shielded him because, at the time of the termination, he was not "currently engaging in the illegal use of drugs." He further argued that the FMLA guaranteed him reinstatement upon return from his approved leave for rehab. The district court disagreed, and granted summary judgment for the employer. The employee appealed.

The Fifth Circuit affirmed the grant of summary judgment. The Circuit said that merely entering a rehab program does not automatically trigger the safe harbor. Current users in rehab are not absolutely protected from termination. The employee had used drugs illegally in the weeks preceding the termination and had failed to complete the rehab program a second time, so the employer had good reason to believe that illegal drug use would continue beyond the employee's second failed rehab stint. Thus, the ADA's safe harbor provision did not apply.

Second, the FMLA did not guarantee the employee's reinstatement because his drug abuse justified his termination. The employer's policy provided that an employee who does not complete a rehab program can be subject to termination. The FMLA shield does not trump an employer's legitimate reason for termination; in this case, drug abuse and failure to complete rehab. The employee would have been subject to termination even if he had not taken FMLA leave, and thus the fact that he took FMLA leave does not wipe the slate clean.

What does this mean for employers? First, the ADA does not protect an employee who illegally used drugs at any time within the weeks preceding the termination. Courts grant employers some leeway in determining whether an employee's recent drug abuse issues will continue to be a problem even if the employee's actual drug use has ceased at the time of the termination.

Second, simply entering a rehab program does not automatically trigger the ADA safe harbor provision's protections. An employee who has not been drug-free for a significant amount of time is still "currently engaging" in illegal drug use.

Third, reinstatement following FMLA leave is not guaranteed. In an important holding, the Fifth Circuit clarified earlier decisions suggesting that FMLA leave guaranteed reinstatement. The employee must still be eligible for the position. Here, the employee's position required that he successfully complete a rehab program, which is a valid job requirement under the FMLA.

Finally, "illegal" drug abuse is not confined to drugs that are per se illegal. In this case, the employee was addicted to prescription drugs. But his "legal" prescription drug use became "illegal" when he received additional prescriptions for the same drug from multiple physicians without their knowledge. In this light, the ADA does not protect prescription drug users when their legal use of the prescription has become illegal drug abuse.