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drug addiction. Salley v. Cir. City Stores, Inc., 160 F.3d 977, 980 n.2 (3d Cir. 1998); 42 U.S.C.
§ 12114; 29 C.F.R. § 1630.3. Put differently, in order for an employee to be deemed disabled
by his status as a recovering drug addict, he must be addicted to drugs but no longer “currentl
engaging’ in illegal use. Salley, 160 F.3d at 980 n.2. Whether an employee is “recovering” or
“currently engaging” in illegal drug use is determined on a case-by-case basis. Id.; see also
Suarez v. Pennsylvania Hosp. of Univ. of Pennsylvania Health Sys., 2018 WL 6249711, at *6
(E.D. Pa. Nov. 29, 2018).
Additionally, a person who “ ‘is erroneously regarded as engaging in [the use of illegal drugs],
but is not engaging in such use,’ shall be construed as a qualified individual with a disability.”
Herman v. City of Allentown, 985 F. Supp. 569, 576 (E.D. Pa. 1997) (quoting 42 U.S.C. §
12114).

substantially impaired his ability to engage in major life activities such as

“socializing with family and friends, caring for himself, and attending work on a

daily basis.”® (Id.) The motion to dismiss does not challenge the disability
element of Spak’s prima facie case. (Doc. 8, Def. Br. in Supp. at ECF pp. 10-11)
Defendants, however, assert that the complaint lacks the requisite specificity as

to the remaining elements of Spak’s prima facie case. (Id.)
Regarding the second element of Spak’s prima facie case of disability
discrimination—that he is otherwise qualified to perform the essential functions o
the job, with or without reasonable accommodations by the employer—
defendants contend that the complaint is devoid of clear documentation or
substantiation that would unequivocally show that Spak was performing all
essential job functions satisfactorily. (Id. at ECF p. 11). Spak counters that at thi

Here, Spak alleges that he was a recovering drug addict within the meaning of the ADA during
the time of his employment with Oscar Smith. (Doc. 1, Compl. \| 43). Spak also alleges that he
did not use opiates or other illegal drugs at any time during the course of his employment with
Oscar Smith. (Id. { 19). Accepting Spak’s factual allegations as true, he is thus protected by
the ADA from discrimination on the basis of his past drug addiction.
5 Socializing could be deemed a major life activity for ADA purposes. “The activity of
interacting with others is substantially limited only where an individual's socialization is
‘characterized on a regular basis by severe problems such as high levels of hostility, social
withdrawal, or failure to communicate when necessary.’ " Peter v. Lincoln Tech. Inst. Inc., 255
F. Supp. 2d 417, 433 (E.D. Pa. 2002) (quoting Olson v. Dubuque Cmty. Sch. Dist., 137 F.3d
609, 612 (8th Cir.1998}).
As for working, “a court must consider an individual's training, skills and abilities in order to
evaluate whether their particular ailment constitutes, for that particular person, a significant
limitation on employment.” Id. at 435.

stage of the proceedings, he is only required to plausibly allege that he meets th
minimum prerequisite to perform his job. (Doc. 9, Br. in Opp. at 8). The court

agrees.
Spak alleged that he worked for defendants for approximately six (6)
months, performed his job well, and received positive feedback without any
disciplinary action taken against him. (Doc. 1, Compl. JJ 15, 16, 30, 31). By
arguing that Spak needed to present evidence proving that he was performing
his tasks effectively, defendants seek to fast-forward this case to the summary
judgment phase. At this juncture, Spak does not need to present any evidence
that would substantiate his allegations. Summary judgment is a more
appropriate vehicle to assess the strength of Spak’s allegations, alongside his
evidence.
To further argue that Spak was not qualified for his position, defendants
assert that Spak’s failure to disclose his past drug addiction at the time of hiring
is fatal to his allegations that he was qualified to perform the job. (Doc. 8, Def. Br
in Supp. at ECF p. 11). Per defendants, Spak’s job required full disclosure of

10

conditions that could impact job performance for safety-sensitive roles.® (Id,)
Defendants’ argument is flawed in that respect.’
Section 12112(d) of the ADA provides that, prior to making an offer of

employment, an employer cannot “conduct a medical examination or make

inquiries of a job applicant as to whether such applicant is an individual with a

disability or as to the nature or severity of such disability.” 42 U.S.C. § 121 12(d).
Hence, “a violation of §12112(d) occurs at the moment an employer conducts an

improper medical examination or asks an improper disability-related question,
regardless of the results or response.” Green v. Joy Cone Co., 107 F. App’x 278,

6 Whether Spak’s position at Oscar Smith qualified as a safety-sensitive role is best
determined after discovery.
? As the Third Circuit Court of Appeals noted in Taylor v. Pathmark Stores, Inc., “one of the
points of ‘regarded as’ protection is that employers cannot misinterpret information about an
employee's limitations to conclude that the employee is incapable of performing a wide range
of jobs.” 177 F.3d 180, 190 (3d Cir. 1999). The Court of Appeals permits a “regarded as” claim
of disability discrimination to move forward even if the employer is innocently wrong about the
extent of plaintiffs impairment because:
Although the legislative history indicates that Congress was
concerned about eliminating society's myths, fears, stereotypes and
prejudices with respect to the disabled, the EEOC’s Regulations and
Interpretive Guidelines make clear that even an_ innocent
misperception based on nothing more than a simple mistake of fact
as to the severity, or even the very existence, of an individual's
impairment can be sufficient to satisfy the statutory definition of a
perceived disability. Thus whether or not [the defendant] was
motivated by myth, fear or prejudice is not determinative of [the
plaintiffs] “regarded as” claim.
Id. at 191 (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998)).
11

280 (3d Cir. 2004). However, the ADA permits employers to make disability-
related inquiries of employees if such inquiries are job-related or consistent with

drug addiction. Salley v. Cir. City Stores, Inc., 160 F.3d 977, 980 n.2 (3d Cir. 1998); 42 U.S.C.

§ 12114; 29 C.F.R. § 1630.3. Put differently, in order for an employee to be deemed disabled

by his status as a recovering drug addict, he must be addicted to drugs but no longer “currentl

engaging’ in illegal use. Salley, 160 F.3d at 980 n.2. Whether an employee is “recovering” or

“currently engaging” in illegal drug use is determined on a case-by-case basis. Id.; see also

Suarez v. Pennsylvania Hosp. of Univ. of Pennsylvania Health Sys., 2018 WL 6249711, at *6

(E.D. Pa. Nov. 29, 2018).

Additionally, a person who “ ‘is erroneously regarded as engaging in [the use of illegal drugs],

but is not engaging in such use,’ shall be construed as a qualified individual with a disability.”

Herman v. City of Allentown, 985 F. Supp. 569, 576 (E.D. Pa. 1997) (quoting 42 U.S.C. §

12114).

substantially impaired his ability to engage in major life activities such as

“socializing with family and friends, caring for himself, and attending work on a

daily basis.”® (Id.) The motion to dismiss does not challenge the disability

element of Spak’s prima facie case. (Doc. 8, Def. Br. in Supp. at ECF pp. 10-11)

Defendants, however, assert that the complaint lacks the requisite specificity as

to the remaining elements of Spak’s prima facie case. (Id.)

Regarding the second element of Spak’s prima facie case of disability

discrimination—that he is otherwise qualified to perform the essential functions o

the job, with or without reasonable accommodations by the employer—

defendants contend that the complaint is devoid of clear documentation or

substantiation that would unequivocally show that Spak was performing all

essential job functions satisfactorily. (Id. at ECF p. 11). Spak counters that at thi

Here, Spak alleges that he was a recovering drug addict within the meaning of the ADA during

the time of his employment with Oscar Smith. (Doc. 1, Compl. | 43). Spak also alleges that he

did not use opiates or other illegal drugs at any time during the course of his employment with

Oscar Smith. (Id. { 19). Accepting Spak’s factual allegations as true, he is thus protected by

the ADA from discrimination on the basis of his past drug addiction.

5 Socializing could be deemed a major life activity for ADA purposes. “The activity of

interacting with others is substantially limited only where an individual's socialization is

‘characterized on a regular basis by severe problems such as high levels of hostility, social

withdrawal, or failure to communicate when necessary.’ " Peter v. Lincoln Tech. Inst. Inc., 255

F. Supp. 2d 417, 433 (E.D. Pa. 2002) (quoting Olson v. Dubuque Cmty. Sch. Dist., 137 F.3d

609, 612 (8th Cir.1998}).

As for working, “a court must consider an individual's training, skills and abilities in order to

evaluate whether their particular ailment constitutes, for that particular person, a significant

limitation on employment.” Id. at 435.

stage of the proceedings, he is only required to plausibly allege that he meets th

minimum prerequisite to perform his job. (Doc. 9, Br. in Opp. at 8). The court

agrees.

Spak alleged that he worked for defendants for approximately six (6)

months, performed his job well, and received positive feedback without any

disciplinary action taken against him. (Doc. 1, Compl. JJ 15, 16, 30, 31). By

arguing that Spak needed to present evidence proving that he was performing

his tasks effectively, defendants seek to fast-forward this case to the summary

judgment phase. At this juncture, Spak does not need to present any evidence

that would substantiate his allegations. Summary judgment is a more

appropriate vehicle to assess the strength of Spak’s allegations, alongside his

evidence.

To further argue that Spak was not qualified for his position, defendants

assert that Spak’s failure to disclose his past drug addiction at the time of hiring

is fatal to his allegations that he was qualified to perform the job. (Doc. 8, Def. Br

in Supp. at ECF p. 11). Per defendants, Spak’s job required full disclosure of

10

conditions that could impact job performance for safety-sensitive roles.® (Id,)

Defendants’ argument is flawed in that respect.’

Section 12112(d) of the ADA provides that, prior to making an offer of

employment, an employer cannot “conduct a medical examination or make

inquiries of a job applicant as to whether such applicant is an individual with a

disability or as to the nature or severity of such disability.” 42 U.S.C. § 121 12(d).

Hence, “a violation of §12112(d) occurs at the moment an employer conducts an

improper medical examination or asks an improper disability-related question,

regardless of the results or response.” Green v. Joy Cone Co., 107 F. App’x 278,

6 Whether Spak’s position at Oscar Smith qualified as a safety-sensitive role is best

determined after discovery.

? As the Third Circuit Court of Appeals noted in Taylor v. Pathmark Stores, Inc., “one of the

points of ‘regarded as’ protection is that employers cannot misinterpret information about an

employee's limitations to conclude that the employee is incapable of performing a wide range

of jobs.” 177 F.3d 180, 190 (3d Cir. 1999). The Court of Appeals permits a “regarded as” claim

of disability discrimination to move forward even if the employer is innocently wrong about the

extent of plaintiffs impairment because:

Although the legislative history indicates that Congress was

concerned about eliminating society's myths, fears, stereotypes and

prejudices with respect to the disabled, the EEOC’s Regulations and

Interpretive Guidelines make clear that even an_ innocent

misperception based on nothing more than a simple mistake of fact

as to the severity, or even the very existence, of an individual's

impairment can be sufficient to satisfy the statutory definition of a

perceived disability. Thus whether or not [the defendant] was

motivated by myth, fear or prejudice is not determinative of [the

plaintiffs] “regarded as” claim.

Id. at 191 (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998)).

11

280 (3d Cir. 2004). However, the ADA permits employers to make disability-

related inquiries of employees if such inquiries are job-related or consistent with