Can Maryland bar drug users from state jobs, or would that violate federal disability discrimination law?

Plain-English summary

Delegate Robert R. Staab had proposed to Maryland's Secretary of Personnel a urinalysis screening procedure for State job applicants: test for illegal drugs during the preliminary physical exam, place a temporary hold on any applicant who tests positive, and let the applicant reapply after a thirty-day, drug-free waiting period followed by a clean retest. He asked the Attorney General whether the Secretary had authority to adopt this procedure and what constitutional or statutory limits might apply.

The opinion answered in stages. First, the Secretary of Personnel already has broad statutory authority under Maryland's Merit System law to set employment qualifications and to test and investigate applicants' fitness for particular jobs, so the Secretary could adopt a rule requiring abstinence from illegal drug use as a job qualification and could screen for it. Second, on federal constitutional grounds, the opinion concluded a State-wide ban on hiring current drug abusers would likely survive both an Equal Protection Clause challenge, based on a U.S. Supreme Court decision upholding a similar rule against methadone users, and a substantive due process challenge, because rejected applicants have no protected property or liberty interest in State employment and could still become eligible later by stopping their drug use. Third, on state antidiscrimination law, the opinion concluded Maryland's handicap-discrimination statutes do not cover drug abuse, following a prior Attorney General opinion excluding alcoholism and drug addiction from the statutory definition of "physical or mental handicap." Fourth, and most significantly for practical implementation, the opinion concluded that an indiscriminate, across-the-board ban applied to positions in programs receiving federal financial assistance would violate the federal Rehabilitation Act of 1973, which only allows excluding a drug abuser from coverage if that person's current drug use actually prevents them from performing the essential functions of the specific job or poses a danger to life or property, a determination the Act requires to be made position by position or applicant by applicant, not through a blanket rule.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied the federal Rehabilitation Act of 1973 as amended in 1978, the Equal Protection and Due Process Clauses as interpreted by federal case law through 1982, and Maryland's Merit System and antidiscrimination statutes (Articles 49B, 64A, and 100 of the Maryland Code) as they existed at the time. Federal disability law has since been substantially expanded by the Americans with Disabilities Act of 1990 and its amendments, and Maryland's employment statutes have been recodified. Anyone researching a current drug-testing or disability-discrimination question involving Maryland state employment should consult the current federal and state statutory framework rather than relying on this 1982 analysis.

Common questions

If drug abuse isn't a protected disability under Maryland law, why would the federal Rehabilitation Act matter?
The opinion explained that the Rehabilitation Act is a separate, federal law that applies specifically to any program or activity receiving federal financial assistance, regardless of how Maryland's own antidiscrimination statutes define "handicap." Even though the opinion concluded that Maryland's own handicap-discrimination statutes do not cover drug abuse, the federal Act has its own definition and its own requirements that a State receiving federal funds must separately satisfy.

Doesn't the Rehabilitation Act just protect all disabilities, including drug addiction?
Not automatically. The opinion noted that the Act had been amended in 1978 specifically to exclude from the definition of "handicapped individual," for employment purposes, an alcoholic or drug abuser whose current use of alcohol or drugs prevents them from performing the job or poses a direct threat to property or safety. The opinion read this to mean the exclusion only applies to a specific person shown to be actually unable to do a specific job, not to drug abusers as a category.

Could Maryland just decide to test everyone and reject anyone who fails, everywhere?
Only outside of federally assisted programs, according to the opinion. For positions in programs that receive federal financial assistance, an indiscriminate across-the-board ban would violate the Rehabilitation Act. Within those programs, the Secretary would still be able to require drug screening, but any resulting employment decision would need to reflect an individualized determination about that applicant and that job, not a blanket exclusion rule.

Would a rejected applicant have any legal claim over losing out on a state job?
The opinion concluded no, at least under the federal Due Process Clause, reasoning that an applicant has no constitutionally protected property interest in a job they have not yet been offered, and that being turned down for one State job, without public disclosure of the reason, does not impair a "liberty" interest in pursuing other employment.

Background and statutory framework

Delegate Staab had proposed to the Secretary of Personnel a specific drug-screening procedure for State employment applicants: urinalysis during the preliminary physical examination, a temporary hold on the application if illegal drugs (other than prescribed medication) were detected, and reinstatement of the application after a thirty-day period and a negative retest. He cited concerns about absenteeism and poor work quality among drug abusers as the policy basis for the proposal, and asked the Attorney General to assess the Secretary's authority to adopt it and the constitutional or statutory limits on doing so.

The opinion first addressed the Secretary's basic authority, finding it well grounded in the Merit System law: the Secretary has general authority to make rules carrying the force of law, to classify positions by their duties and required qualifications, and to prescribe testing and investigation of applicants' fitness for particular positions, all under Article 64A of the Maryland Code. The opinion reasoned that if the Secretary determined drug abuse would be incompatible with effective performance in some or all State positions, existing law would support both establishing abstinence as a job qualification and screening applicants to determine whether they meet it, bolstered by the observation that the General Assembly had specifically included state government within a separate statute banning lie-detector tests by employers, implying the Secretary would otherwise have authority to use screening devices like drug tests absent a similar specific prohibition.

On federal constitutional limits, the opinion analyzed both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. For equal protection, it relied heavily on a U.S. Supreme Court decision upholding a New York City Transit Authority rule that barred all current methadone users from subway system jobs, even though the rule was concededly broader than necessary to exclude only those methadone users actually unqualified for particular jobs, because the Constitution does not require individualized fit between a personnel classification and every affected individual so long as the classification as a whole serves a legitimate government interest like safety and efficiency. For due process, the opinion found that a rejected applicant has no protected property interest, since Maryland law creates no legal entitlement to being hired, and no protected liberty interest, since a private, undisclosed rejection does not "stigmatize" the applicant or foreclose employment elsewhere, following federal case law distinguishing an applicant's mere hope or expectation of a job from a legally cognizable interest, while acknowledging a minority line of cases applying a somewhat more skeptical standard to government employment bans.

On state law, the opinion analyzed three Maryland antidiscrimination and merit-system statutes potentially applicable to a drug-abuser hiring ban, Article 49B's handicap-discrimination prohibition and Article 64A's provisions barring discrimination based on "physical defect or impairment" or "physical or mental handicap." Relying on a prior Attorney General opinion that had already concluded alcoholism and drug addiction do not fall within Article 49B's statutory definition of "physical or mental handicap" because they are not similar to the listed conditions like paralysis, blindness, or deafness, the opinion extended that same reading to the parallel terms in Article 64A, concluding none of these three Maryland statutes would bar a rule excluding drug abusers from State employment.

The opinion's most consequential section addressed the federal Rehabilitation Act of 1973, which prohibits discrimination against an "otherwise qualified handicapped individual" in any program or activity receiving federal financial assistance, with noncompliance risking termination of that federal funding. The opinion noted that Congress amended the Act's employment provisions in 1978 to exclude from protection only those current alcoholics or drug abusers whose drug use actually prevents them from performing the job's essential functions or poses a direct threat to safety or property, a targeted exclusion Congress's own conference report described as applying only to those who actually cannot perform or actually present a danger, not to drug abusers as a class. Because a blanket, across-the-board hiring ban would sweep in drug abusers who could, in fact, perform particular jobs safely, the opinion concluded such a rule would conflict with the Rehabilitation Act as applied to federally assisted State programs, though the Secretary could still require screening and then make individualized, position-by-position or applicant-by-applicant judgments consistent with the Act and its implementing regulations.

Citations

Statutes:

• Article 64A, §11 of the Maryland Code
• Article 64A, §16 of the Maryland Code
• Article 64A, §18(a) of the Maryland Code
• Article 100, §95(a)(2) of the Maryland Code
• U.S. Const. amend. XIV, §1
• Article 24 of the Maryland Declaration of Rights
• Article 49B, §16(a)(1) of the Maryland Code
• Article 64A, §12 of the Maryland Code
• Article 64A, §12A of the Maryland Code
• Article 49B, §15(g) of the Maryland Code
• 29 U.S.C. §701(8)
• 29 U.S.C. §794
• 29 U.S.C. §794a
• 42 U.S.C. §2000d-1
• 29 U.S.C. §706(7)(B)
• 45 C.F.R. §84.14

Cases:

• New York City Transit Authority v. Beazer, 440 U.S. 568 (1979)
• Kindem v. City of Alameda, 502 F.Supp. 1108 (N.D. Cal. 1980)
• Jeffries v. Turkey Run Consolidated School Dist., 492 F.2d 1, 4 (7th Cir. 1974)
• Jolly v. Listerman, 672 F.2d 935, 941 (D.C. Cir. 1982)
• Clark v. Whiting, 607 F.2d 634, 641 n.17 (4th Cir. 1979)
• Buhr v. Buffalo Public School Dist. No. 38, 509 F.2d 1196, 1201-03 (8th Cir. 1974)
• Steinberg v. Elkins, 470 F.Supp. 1024, 1025 (D.Md. 1979)
• Kersey v. Shipley, 673 F.2d 730, 732 (4th Cir. 1982)
• Board of Regents v. Roth, 408 U.S. 564, 577 (1972)
• Andre v. Montgomery County Personnel Board, 37 Md. App. 48, 63-64 (1977)
• Montgomery County v. Walsh, 274 Md. 502, 521 (1975)
• Mervin v. FTC, 591 F.2d 821, 828 (D.C. Cir. 1978)
• Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1974)
• Butts v. Nichols, 381 F.Supp. 573 (S.D. Iowa 1974)
• Seller v. Middendorf, 632 F.2d 788, 807-08 (9th Cir. 1980)
• Bussey v. Harris, 611 F.2d 1001, 1006 (5th Cir. 1980)
• Northcross v. Board of Educ. of the Memphis City Schools, 412 U.S. 427, 428 (1973)
• Helms v. McDaniel, 657 F.2d 800, 806 (5th Cir. 1981)
• Tatro v. State of Texas, 625 F.2d 557, 564 (5th Cir. 1980)
• Trageser v. Libbie Rehabilitation Center, 590 F.2d 87, 89 (4th Cir. 1978)
• Jones v. Metropolitan Atlanta Rapid Transit Auth., 681 F.2d 1376 (11th Cir. 1982)
• Attorney General v. Waldron, 289 Md. 683 (1981)
• Southeastern Community College v. Davis, 442 U.S. 397 (1979)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PERSONNEL

Constitutional Law—Drug Abuse—Discrimination Against Handicapped—Federal Rehabilitation Act of 1973—Equal Protection—Due Process—Barring Drug Abusers From State Employment Not Unconstitutional, But Might Violate Rehabilitation Act

December 22, 1982

The Honorable Robert R. Staab
Maryland House of Delegates

You have requested our opinion on the legality of a proposed procedure to determine whether applicants for State employment are current users of illegal drugs ("drug abusers") and to bar from employment those who are. You describe as follows the procedure that you have recommended to the Secretary of Personnel:

"My proposal was a urinalysis to be given during the preliminary physical examination: detection of drugs (other than prescribed medications) in the system would result in a temporary hold on that individual's application for employment. Following a thirty-day hiatus, the individual would be re-tested and a negative result would return the application for processing."

Your letter cites the policy concerns underlying your proposal, including absenteeism and poor quality work by drug abusers. You have specifically asked us to consider the Secretary's authority to adopt your proposal and the potential constitutional or statutory restrictions on the exercise of that authority.

For the reasons given below, we conclude as follows:

(1) Under State law, the Secretary of Personnel has the authority to adopt a rule that would uniformly bar drug abusers from State positions. To implement such a rule, the Secretary would have authority to provide for a process by which to screen all applicants for drug abuse.

(2) With respect to constitutional restrictions, an across-the-board employment ban applicable to drug abusers would likely be sustained against a challenge under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Moreover, while the matter is slightly less certain, such a ban would also likely survive scrutiny under the Due Process Clause of the Fourteenth Amendment.

(3) With respect to federal statutory restrictions, an across-the-board employment ban applicable to drug abusers would be contrary to the federal Rehabilitation Act of 1973. However, that Act would permit a more selective rule, reflecting the needs of particular types of positions or the attributes of particular drug abusers. State statutes prohibiting discrimination against the handicapped do not apply in this context.

We emphasize that our discussion here is confined to the legality of the proposed screening program. Determinations about whether such a program would be feasible or desirable are, at least in the first instance, the responsibility of the Secretary of Personnel, and we do not wish to be understood as addressing those serious policy concerns.

I
Authority of Secretary of Personnel

The Secretary of Personnel has the general authority and duty "to carry out the provisions of [the Merit System law] and to make such rules as he deems necessary or proper to that end. . . . [A]ll such rules shall have the force and effect of law." Article 64A, §11 of the Maryland Code. The Secretary also has specific authority to classify positions "similar in respect to the duties and responsibilities appertaining thereto and the qualifications required for the fulfillment thereof". Article 64A, §16 (emphasis added).

Finally, the Secretary has authority to prescribe such testing and investigation of job applicants as may be necessary to determine their fitness for particular positions:

"Examinations held by the Secretary of Personnel to establish lists of persons eligible for appointment may be written or oral or in the form of a demonstration of skill or any combination of these and shall be of a character fairly to test and determine the relative fitness and ability of candidates actually to perform the duties of the class of positions to which they seek to be appointed. Any investigation of training and experience and any tests of technical knowledge, manual skill or physical fitness that in the judgment of the Secretary serves [sic] to this end may be employed." Article 64A, §18(a).

In our opinion, if the Secretary determines that an employee's drug abuse would have consequences incompatible with effective performance in some or all classes of State positions, he would have authority under these statutes to establish abstinence from illegal drug use as a qualification for those classes.1 Moreover, he would have authority to adopt any measure reasonably designed to ascertain whether an applicant meets that qualification or not.2 If the screening program you propose would do so, the Secretary has statutory authority to adopt it.

II
Equal Protection Requirements

Any State ban on the hiring of drug abusers must comport with the federal constitutional prohibition against a state's "deny[ing] to any person within its jurisdiction the equal protection of the laws". U.S. Const. amend. XIV, §1. We believe that such a ban would likely be sustained against a challenge under the Equal Protection Clause.3

In New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), the United States Supreme Court considered the constitutionality of a New York City Transit Authority ("Authority") rule that barred current methadone users from all jobs in the subway system.4 The lower courts had found the rule to be unconstitutionally overbroad: "Because it is clear that substantial numbers of methadone users are capable of performing many of the jobs at [the Authority], the [District C]ourt held that the Constitution will not tolerate a blanket exclusion of all users from all jobs." 440 U.S. at 578.

The Supreme Court reversed, however, finding a constitutionally sufficient rational basis for the Authority's rule. It summarized its equal protection analysis as follows:

"At its simplest, the District Court's conclusion was that [the Authority's] rule is broader than necessary to exclude those methadone users who are not actually qualified to work for [the Authority]. We may assume not only that this conclusion is correct but also that it is probably unwise for a large employer like [the Authority] to rely on a general rule instead of individualized consideration of every job applicant. But these assumptions concern matters of personnel policy that do not implicate the principle safeguarded by the Equal Protection Clause. As the District Court recognized, the special classification created by [the Authority's] rule serves the general objectives of safety and efficiency. . . . Under these circumstances, it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole. . . .

No matter how unwise it may be for [the Authority] to refuse employment to individual car cleaners, track repairmen, or bus drivers simply because they are receiving methadone treatment, the Constitution does not authorize a federal court to interfere in that policy decision." 440 U.S. at 592-94.

If the Secretary of Personnel adopted a rule barring drug abusers from State jobs for the reasons alluded to in your letter, i.e., because the work quality and absenteeism rate of drug abusers, as a general matter, would not meet State standards, such a rule would be consistent with the equal protection analysis of Beazer.5

III
Due Process Requirements

A rule barring drug abusers from all State jobs must meet yet another constitutional test: the rule must not "deprive any person of life, liberty, or property, without due process of law". U.S. Const. amend. XIV, §1. The issue posed by the proposed rule is one of "substantive due process", that is, whether the State's refusal to hire drug abusers would be viewed as an arbitrary exercise of governmental power. We think that such a rule would likely survive this constitutional scrutiny, although the issue is not free from all doubt.6

Under the view of the Due Process Clause adopted by the vast majority of federal courts, a person may assert a deprivation of either substantive or procedural due process rights only if he or she claims a cognizable "liberty or property" interest: "[T]he absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in her substantive due process argument." Jeffries v. Turkey Run Consolidated School Dist., 492 F.2d 1, 4 (7th Cir. 1974) (per Stevens, J.). See also Jolly v. Listerman, 672 F.2d 935, 941 (D.C. Cir. 1982); Clark v. Whiting, 607 F.2d 634, 641 n.17 (4th Cir. 1979); Buhr v. Buffalo Public School Dist. No. 38, 509 F.2d 1196, 1201-03 (8th Cir. 1974); Steinberg v. Elkins, 470 F.Supp. 1024, 1025 (D.Md. 1979).

"Property interests in employment positions are not created by the Constitution, but rather, are created and their dimensions defined by independent sources such as state law, local ordinances, and employment contracts." Kersey v. Shipley, 673 F.2d 730, 732 (4th Cir. 1982). In our opinion, the opportunity to be hired by the State is not a protected "property" interest, because an applicant has no statutory or other entitlement to a position. At most, the applicant has a need, desire, or expectation of a job; these interests are not protected by the Due Process Clause. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). See Andre v. Montgomery County Personnel Board, 37 Md. App. 48, 63-64 (1977) (opportunity for promotion not a protected property interest). As the Court of Appeals has summarized: "[T]here is no constitutional right to public employment as such which will be protected against infringement on its own account apart from violation of other constitutional rights." Montgomery County v. Walsh, 274 Md. 502, 521 (1975).

In our opinion, a drug abuser who is refused State employment also suffers no impairment of a "liberty" interest within the protection of the Due Process Clause. A cause of action for infringement of liberty arises in this context only if the State acts in some specific way to "effectively foreclose [a person's] opportunities to obtain future employment in his profession", for example by publicly stigmatizing the person. Mervin v. FTC, 591 F.2d 821, 828 (D.C. Cir. 1978). Denial of State employment, the explanation for which would presumably not be disclosed to other potential employers, does not itself reduce an applicant's opportunity to obtain a job elsewhere. Thus, the rule in question here would not deprive a drug abuser of any liberty interest protected under the federal Constitution.7 "It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains as free as before to seek another." Board of Regents v. Roth, 408 U.S. at 575.

However, we caution that a more expansive view of the Due Process Clause, as adopted by a minority of courts, casts some small doubt on the validity of a flat hiring ban. In Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1974), the court held unconstitutional a city ordinance that prohibited persons with less than honorable military discharges from employment with the city. Against the argument that a job with the city represented neither a liberty nor a property interest, the court held that:

"The Fourteenth Amendment stands for the proposition that the government must act, when it acts, in a manner which is neither arbitrary nor unreasonable. . . . It is one which most certainly applies not only to the government as policeman but also to the government as employer." 489 F.2d at 447.

The court viewed the flat hiring ban as "irrational", in part because the ordinance failed to correlate the basis for a less than honorable discharge with job performance requirements. It is at least conceivable that a skeptical court might reach the same conclusion about the rule you have proposed. See also Butts v. Nichols, 381 F.Supp. 573 (S.D. Iowa 1974) (suggesting substantive due process defect in statute barring ex-felons from all state jobs; statute held unconstitutional on equal protection grounds).

Nevertheless, even under the more expansive standard applied in these minority cases, we believe the proposed rule would likely be upheld, given the State interests said to justify it. The substantive due process analysis to be applied to a government classification is comparable to an equal protection analysis. Seller v. Middendorf, 632 F.2d 788, 807-08 (9th Cir. 1980); Bussey v. Harris, 611 F.2d 1001, 1006 (5th Cir. 1980). Because the proposed rule would comport with the Equal Protection Clause, it should likewise be held consistent with the requisites of substantive due process.8

IV
State Prohibition of Discrimination Against Handicapped

Even if a rule barring drug abusers from State employment were constitutional, it could not be adopted if it were inconsistent with statutes prohibiting employment discrimination by the State against the handicapped.

Three such statutes are potentially applicable here. Under Article 49B, §16(a)(1), an employer, including the State, is subject to the following prohibition:

"It shall be an unlawful employment practice for an employer . . . [t]o fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment". (Emphasis added.)

Article 64A, §12 provides as follows:

"Notwithstanding any provision of law to the contrary, except as herein provided, the Secretary shall not hereafter prohibit, prevent, disqualify or discriminate against any person who is physically and mentally qualified from competing, registering for or participating in a competitive or promotional examination held under the provisions of this article or from qualifying for a position in the classified service by reason of his or her age and/or on account of any physical defect or impairment, providing such physically impaired person shall produce a certificate from a competent medical doctor certifying that the said physically impaired person is not suffering from any physical defect or impairment which is of such a character that would interfere with the physically impaired person performing the duties of the position which the said physically impaired person is seeking." (Emphasis added.)

In addition, Article 64A, §12A imposes the following requirement of equal employment opportunity:

"All merit system actions and transactions shall be made without regard to political or religious opinion or affiliation, marital status, race, color, national origin, sex, physical or mental handicap, age, or other nonmerit factors, except when sex, handicap, or age involves a bona fide job requirement." (Emphasis added.)

Neither the term "physical defect or impairment" nor the term "physical or mental handicap" is defined in these two provisions of Article 64A. However, "physical or mental handicap" is defined for purposes of the first of the statutes quoted above, the prohibition of discrimination contained in Article 49B:

"The term 'physical or mental handicap' means any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment or physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device; and any mental impairment or deficiency as, but not limited to, retardation or such other which may have necessitated remedial or special education and related services." Article 49B, §15(g).

In 63 Opinions of the Attorney General 408 (1978), this Office considered whether alcoholism and drug addiction were included within this definition. The Opinion concluded: "[B]ecause alcoholism and drug addiction are in no way similar to the types of maladies and disabilities listed in [§15(g)], we are unable to say that the General Assembly intended to include them as physical or mental handicaps within the meaning of the antidiscrimination provisions of Article 49B". 63 Opinions of the Attorney General at 413.

That Opinion was careful to note that "this interpretation in no way affects other sections of the Code which may recognize that for some purpose (such as services and programs) chronic alcoholics and narcotics addicts are handicapped persons". Id. Nevertheless, with respect to the provisions applicable here, §§12 and 12A of Article 64A, we discern no reason why the General Assembly should be understood to have intended a different definition of similar terms, particularly when §§12 and 12A also deal with equal employment opportunity. "Unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed to be used in the same sense." 2A Sutherland, Statutory Construction §51.02 at 290 (C. Sands 4th ed. 1973). See, e.g., Northcross v. Board of Educ. of the Memphis City Schools, 412 U.S. 427, 428 (1973).

We conclude, therefore, that the term "physical or mental handicap" in Article 64A, §12A and the narrower term "physical defect or impairment" in Article 64A, §12 do not include drug abuse. Hence, a rule barring drug abusers from State employment would not violate the antidiscrimination commands of these sections.9

V
Federal Statutory Requirements

The Rehabilitation Act of 1973 reflects a national policy to "promote and expand employment opportunities in the public and private sectors for handicapped individuals". 29 U.S.C. §701(8). Section 504 of that Act generally prohibits employment and other discrimination against an "otherwise qualified handicapped individual" in "any program or activity receiving Federal financial assistance". 29 U.S.C. §794. A violation of this prohibition could result in termination of the federal assistance. See 29 U.S.C. §794a; 42 U.S.C. §2000d-1. The Act also permits private actions against states for alleged discrimination in programs that receive federal aid. See, e.g., Helms v. McDaniel, 657 F.2d 800, 806 (5th Cir. 1981); Tatro v. State of Texas, 625 F.2d 557, 564 (5th Cir. 1980). See generally Guy, The Developing Law on Equal Employment Opportunity for the Handicapped, 7 U. Balt. L. Rev. 183, 204 n.70 (1978).10

In 1978, the Act was amended to provide that, for purposes of employment, the term "handicapped individual" excludes "any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others". 29 U.S.C. §706(7)(B). The report of the conference committee that fashioned this provision makes clear the intent that not all current drug abusers were to be excluded from the statutory sphere of protection: "The conference substitute clarifies that only those active alcoholics or drug abusers who cannot perform the essential functions of a job in question or who present a danger to life and property are not covered by the employment provisions of sections 503 and 504." H.R. Rep. No. 95-1780, 95th Cong., 2d Sess. 102 (1978), reprinted in 1978 U.S. Code Cong. & Adm. News 7413.

With respect to State positions in federally aided activities, therefore, an across-the-board bar to the employment of drug abusers would conflict with federal law and, as such, jeopardize the State's right to continued federal assistance. However, the Secretary would not be precluded from determining that an applicant's drug abuse would prevent the applicant from "perform[ing] the essential function of [the] job in question or [would] present a danger to life and property". We believe that the Secretary has leeway to make this determination either on a position-by-position basis or on an individual applicant basis. See Southeastern Community College v. Davis, 442 U.S. 397 (1979) (§504 permits employer "to require reasonable physical qualifications").

Consequently, in our view, the Secretary might require reasonable screening tests of all applicants for positions in federally aided programs to determine current drug abuse, so that the Department could then make the particularized judgment called for by federal law. See 45 C.F.R. §84.14 (Health and Human Services regulations implementing §504 permit an employer to require pre-employment physical examinations of handicapped persons if such examinations are given to all other applicants as well).

VI
Conclusion

In summary, it is our opinion that the Secretary of Personnel is not prevented by federal constitutional requirements or State antidiscrimination laws from adopting a rule barring drug abusers from State employment generally. A rule generally barring drug abusers from positions in federally assisted activities would be contrary to the federal Rehabilitation Act of 1973; with respect to federally assisted activities, however, the Secretary would be authorized to determine, on a position-by-position or applicant-by-applicant basis, that an applicant's drug abuse would prevent performance of the essential functions of the position in question.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
James F. Truitt, Assistant Attorney General
Avery Aisenstark
Chief Counsel,
Opinions and Advice

1 For the reasons discussed in Part V below, however, the Secretary's exercise of this authority to establish an indiscriminate, across-the-board ban would be incompatible with federal law applicable to programs or activities that receive federal financial assistance.

2 Our view that the Secretary has broad authority to use screening devices is reinforced by the fact that, when the General Assembly determined to prohibit the use of lie detector tests by employers, it included "the government of the State of Maryland" within this specific prohibition. Article 100, §95(a)(2) of the Maryland Code. Such a specific reference would have been unnecessary if the Secretary otherwise lacked authority to require lie detector or other screening tests. There is no comparable prohibition on drug screening.

3 The ban in question must also comply with the equal protection principle of Article 24 of the Maryland Declaration of Rights. See generally Attorney General v. Waldron, 289 Md. 683 (1981). We assume, however, that the Court of Appeals would reach the same result in applying the State equal protection principle to this issue as it would in applying the Equal Protection Clause.

4 The rule applied to users of narcotics and certain other drugs. The suit challenging the rule was brought by participants in a methadone maintenance program.

5 In Kindem v. City of Alameda, 502 F.Supp. 1108 (N.D. Cal. 1980), the court enjoined, on equal protection grounds, enforcement of an ordinance that permanently barred ex-felons from city employment. The court observed that, unlike the ban on the hiring of ex-felons before it, the rule upheld in Beazer "only covered current users of methadone, so that a person was not necessarily forever barred from employment with the [Authority] since eligibility returned once he was no longer using methadone". 502 F.Supp. at 1113. The proposed ban in question here would likewise not necessarily forever bar anyone from State employment, because a rejected drug user would be given the opportunity to gain eligibility by stopping his or her drug abuse.

6 In Beazer, the district court had concluded that the Authority's rule violated the Due Process Clause, as well as the Equal Protection Clause. The due process argument was not pressed before the Supreme Court. The Supreme Court nevertheless stated in an unelaborated footnote that "we find no merit in it". 440 U.S. at 592 n.38.

7 In Kindem v. City of Alameda, discussed in note 5 above, the court held that dismissal of a current city employee, pursuant to an ordinance provision barring the employment of ex-felons, arbitrarily impaired the employee's "liberty interest", because the dismissal coupled "stigma" with "absolute foreclosure from working for the City in which he resides". 502 F.Supp. at 1113. By contrast, the proposed across-the-board ban on the hiring of drug abusers involves no comparable stigma and falls short of an "absolute foreclosure" from State employment, for an applicant refused under the proposed policy could be hired if he or she stopped using drugs.

8 Cf. note 6 above.

9 Indeed, even if §12A were applicable, it would not prohibit an employment ban, for by hypothesis the Secretary would adopt such a ban only on determining that abstinence from drug use was a necessary qualification, in other words, "a bona fide job requirement", within the exception of §12A.

10 The federal circuit courts of appeal disagree over the scope of the private right of action to enforce §504, in light of the stated purposes of the Act and the particular wording of the Act's remedial provision. Compare, e.g., Trageser v. Libbie Rehabilitation Center, 590 F.2d 87, 89 (4th Cir. 1978) (action under §504 to redress alleged employment discrimination may not be maintained "unless a primary objective of the federal financial assistance is to provide employment") with Jones v. Metropolitan Atlanta Rapid Transit Auth., 681 F.2d 1376 (11th Cir. 1982) (action under §504 to redress alleged employment discrimination may be maintained as to "programs receiving federal financial assistance of any kind, not just those programs receiving federal financial assistance for the purpose of providing employment"). Whatever the ultimate resolution of this disagreement over remedy, we believe that, in order to avoid jeopardizing its right to continued federal assistance, the State has an obligation to comply with the mandate of §504 in all of its federally assisted programs.