Active Users of Illegal Drugs May Qualify for Disability Discrimination Protection Under Connecticut Law

The Connecticut Fair Employment Practices Act (CFEPA”) protects employees from discrimination on the basis of a present or past history of mental disability. Conn. Gen. Stat. 46a-60(a)(1).  “Mental disability”  is defined in the statute with  precision as referring to a person who has a record of or is regarded as having a mental disorder described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.  Conn. Gen. Stat. 46a-51(20).

The DSM-5, which is the latest edition of the Manual, includes addiction to illegal opiate drugs as an Opioid Use Disorder within a more general category of Addiction and Substance Use Disorders. Therefore, under Connecticut law, drug addiction would be a disability entitled to employment protection against discrimination and to a right of reasonable accommodation.

However, a past history of drug addiction, especially if the employee has been in rehabilitation or is receiving treatment, is different from being an active user while engaged in employment.  The federal Americans With Disabilities Act (“ADA”), while also recognizing drug addiction (and alcoholism) as disabilities, contains a specific exception for active users: employers may enforce performance and behavior standards, without regard to accommodation, if the unsatisfactory performance or behavior is related to drug use. Some court decisions in the past have interpreted CFEPA to be consistent with the federal ADA with respect to active drug users.

However, a recent decision in the Superior Court in Bridgeport, CT, FBT CV-18-6074882S, has departed from this interpretation.  Noting that the absence of any specific exception for active drug use in the CFEPA was a purposeful and meaningful difference between the CFEPA and the ADA, the Court declined to dismiss a wrongful termination lawsuit filed by a police officer who admitted that an “addictive relapse” had led him to obtain heroin from an informant and from an evidence locker at his police station, but who alleged that his department had failed to provide a reasonable accommodation for his disability.

Since this decision was a ruling on a preliminary motion to dismiss the complaint, the core issue of whether the officer’s conduct provided just cause for termination has yet to be decided.  However, the take-away from the case is that termination of an employee is not automatically justified simply because the employee tests positive for illegal drug use, or even admits the use.  Although current drug use may be a defense to a claim under the ADA, Connecticut employers may still have exposure to a CFEPA claim, and should have objective grounds for termination which can’t be challenged as discrimination or failure to accommodate.