Since the amendments to the Americans with Disabilities Act have consistently been held not to apply retroactively, cases under the pre-amendment ADA continue to work their way through the courts. In Warshaw v. Concentra Health Services , the U.S. District Court for the Eastern District of Pennsylvania addressed issues of whether an employee’s attention deficit hyperactivity disorder, or ADHD, rises to the level of a “disability” and whether his employer’s knowledge of his condition and a failed drug test were sufficient to support a claim that he was “regarded as” disabled.
Failed Drug Test
According to the opinion, in fall 2004, Brian Warshaw applied for a job with TEK, a company that places employees in information technology jobs. Warshaw has ADHD, the effects of which are improved, but not eliminated, by medication. Before beginning his first assignment, which was to work at Drexel University College of Medicine, Warshaw was mistakenly administered a drug test, the result of which was that he tested positive for methamphetamine, the opinion said. This result, however, was due to his legal use of medication for his ADHD. Warshaw began his assignment to Drexel, but was terminated three days later, allegedly because he had commented to Drexel’s on-site supervisor about the number of “smoke breaks.”
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