The Texas Commission on Human Rights Act (TCHRA) provides that a “current condition of addiction” to alcohol, drugs, or controlled substances is not a covered “disability.” In Melendez v. Houston Independent School District (December 5, 2013), the Texas 14^th District Court of Appeals in Houston was asked to decide whether an employee who was allegedly fired upon returning from rehabilitation for abuse of prescription drugs was a “current” user beyond the state law’s protections.

Earline Melendez, a clerk for a school district, checked into a hospital where she was diagnosed with an opiate dependency. Her daughter revealed to the school nurse that she had received the same treatment for addiction some five months earlier. Melendez claimed that, upon her return from this second stay, she was forced to resign. She sued for disability discrimination, arguing that her use of drugs was not “current” because, on the day of her resignation, she had successfully completed a drug rehabilitation program and had not used drugs for six days. The trial court ruled in the school’s favor and the appeals court affirmed the dismissal of her claim.

The TCHRA does not have the “safe harbor” provision found in the Americans with Disabilities Act (ADA), which protects individuals who have successfully completed a supervised drug rehabilitation program and are no longer engaging in illegal drug use. Noting that the TCHRA was modeled after the ADA, however, the Houston court adopted the federal Fifth Circuit Court of Appeals’s definition of “current” as used in the ADA: that “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” Given Melendez’s relapse after being in a rehabilitation program only five months earlier, said the court, it was not enough that she had been drug-free for six days; rather, she must have abstained from drugs “for a significant period of time” to be considered free from addiction. As a result, she was considered a “current” drug addict, and therefore, not disabled under the TCHRA.

So how long must an addict be drug-free before he or she is considered “disabled”? The courts in the Fifth Circuit have not drawn a bright line here, but they have ruled that an employee is still a “current” drug abuser when his or her last drug use was four weeks, six weeks, and even seven weeks before termination. Courts seem reluctant to give addicted employees a “free pass” simply for enrolling in rehabilitation.