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Rehire? Maryland

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  • Rehire? Maryland

    Five years ago we had an employee who after 6 months failed a random drug test. We terminated him since he had only been working for us for 6 months. Recently he has applied again. He is the most qualified and we interviewed him. He told us in the interview that he had made a mistake, learned from it and wants to come back and prove himself. I am willing to give him a second chance...our CEO not so much. Does he have any legal recourse for us not hiring him again? My thought is no since he did not go to rehab or anything like that so he would not be covered under ADA, but just want to make sure.

  • #2
    You are under no legal obligation to rehire this former employee.

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    • #3
      You are under no obligation to rehire BUT your reason can not be a past history of addiction. If it is because your CEO doesn't want to rehire anyone terminated for cause, he likes another candidate better, or he just doesn't feel this guy is the best candidate, that is legal. If he doesn't want to rehire because of a history of addiction, it is illegal.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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      • #4
        So, can the addiction proven by just failing a drug test? Or does he have to have shown that he was really addicted, gone for treatment, etc?

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        • #5
          As we've said, you are not legally required to rehire this person. We said this based on everything you said in your first post.

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          • #6
            Nor do you need to tell him why you are not rehiring him. IF he tries to claim that you're not hiring him because of his history of addiction, THEN you need to be able to show other, legal reasons that are unrelated to it. But nothing in the law requires you to provide him with anything other than, "Sorry, we're not making you an offer for this position".
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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            • #7
              Agree, but regarding him as disabled is the same as him actually being disabled. In MD, especially, you are treading a very fine line if you use the past drug test as the reason to deny- whether you tell him this or not. It certainly sounds like this CEO is regarding this guy as an addict, whether it was a one time thing or not.

              Better is to have a blanket policy not to rehire those terminated for cause. Since it sounds like he has already gone through the vetting process, that is going to be difficult to claim now.

              Best practice is not to give specific reasons for non-selection to candidates and focus instead on why you chose the candidate you did as far as internal documents.

              Personally, I would try to have a conversation with the CEO to find out the full story. Is the CEO truly against hiring him or just ask "why him?" upon seeing the name of someone terminated for cause 5 years ago? You might find the CEO has a different perspective after hearing the business case, and or after a brief brush up on ADA. Or, he might have a valid reason for wanting someone else that has nothing to do with this guy's history with you.

              If not selected, I would just send the standard, Dear Candidate letter.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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              • #8
                Thanks Elle that is what I was afraid of and I am afraid that he is not hiring him because of his past use. I will have a conversation with him and see where it goes. Thanks!

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                • #9
                  It's a fine line between regarding him as an addict and holding what the CEO believes to be a one time mistake against him. The former is not ok, the latter is. Safest is documenting it for your records as "decline due to to past termination for cause", and letting it go at that. If you start trying to justify what the CEO thinks of the past drug use you start running into trouble.
                  I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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