Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer in affirming the dismissal of Bailey’s ADA lawsuit:
Bailey cannot show pretext if Real Time had an honest belief that he used illegal drugs… It is not clear that there was an error in the drug test at all, and Real Time went through a reasoned process by consulting with its medical review officer. Real Time had to decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to credit the medical review officer’s does not support an inference of discriminatory animus. Even if the positive result was in fact false, an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.
This case raises an interesting question. Medical marijuana is legal in 20 states plus in the District of Columbia. Can an employer fire an employee who tests positive for legally prescribed marijuana? The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is akin to any legally prescribed medication.
Here are four general thoughts on the handling of any legally prescribed medication under the ADA, including marijuana:
Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
Drug testing. Drug testing programs can include legally prescribed drugs. And employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
Post-disclosure handling. After an learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.
Employers are wary about letting anyone work while under the influence of any drugs, legal or illegal. As explained above, however, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Your best course of action is to consult with experienced employment counsel before implementing any policies or taking any action against employees that implicate these complex issues.
I have confession to make. I’m a Jew who loves Christmas. I knew it from an early age. We’d leave temple on a December Friday night and swing by a few streets on the way home to check out the lights. I loved going to Feeney’s garden center in Feasterville, PA, to see the decorated trees and Christmas displays. Some of my best childhood memories are riding the bus downtown with my Grandmom Annie to see the Christmas Light Show at Wanamaker’s and the Enchanted Colonial Village at Lit Brothers. And, I couldn’t wait for A Charlie Brown Christmas and Rudolph the Red-Nosed Reindeer to air each year.
Now, I am part of an interfaith family, in which we celebrate both Hanukkah and Christmas. I’m so proud of my seven-year-old daughter, who, earlier this week, visited with her old first-grade teacher to share the story of Hanukkah with this year’s batch of first graders.
Despite my Jewish roots, I jokingly say I am 13 in Christmas years, since this the 13th Christmas my wife and I have spent together. And, For the record, despite my religiously diverse family, and despite Jon Stewart’s opposition of the “War on Christmas,” I am not opposed to people wishing others a “Merry Christmas.”
So, pick your poison: Merry Christmas, Happy (belated) Hanukkah, Happy Kwanzaa, or Happy Holidays. Whichever you choose, have a joy-filled December.
Here’s the rest of what I read the last two weeks:
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?
Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.
Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.
Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.
In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:
Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.
Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.
If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:
- The cost of the accommodation.
- The employer’s overall size, number, composition, structure, and functions of employees, and the financial resources.
- The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
- The relationship of the facility in question to the overall operations of the employer.
D.R. Horton v. NLRB [pdf] concerns whether, under the National Labor Relations Act, an employer can enforce against its employees an arbitration agreement under which the employees agree to arbitrate all employment claims, but waive their right to do so as a class or collective action in any forum.
The NLRB had held that such an agreement violates the NLRA by unlawfully limiting the employees’ rights to engage in protected concerted activity.
Yesterday, in reviewing that NLRB decision, the 5th Circuit Court of Appeals disagreed, and overturned the NLRB’s efforts to invalidate all attempts by employers to ban class arbitrations.
In its ruling, the Court concluded that the Court had overstepped its bounds by ignoring the implication of the Federal Arbitration Act. The opinion is an interesting read for those interested in agency deference and statutory interpretation. Otherwise, all you need to know about this opinion is that class action waivers are legal, so long as employees cannot reasonably read them to restrict their right to file unfair labor practice charges with the NLRB.
Readers of my blog will know that I am not a fan of employment arbitration agreements. Nevertheless, for employers who favor this tool, this case is a huge victory in confirming the scope of how far an employer can go with such an agreement.
A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.
In her defense, Silberkleit claims that she cannot be liable because “white men” are not a class protected from discrimination.
Rest assured, that defense is a loser. Title VII does not just protect minorities from discrimination. It protects all employees from discrimination. Thus, a male employee enjoys the same rights as a female employee to a workplace free from discrimination, just as a white employee has the same rights a black employee. An employer cannot treat men differently than women, or whites differently than blacks, and the disparately affected and marginalized class (whether or not a historical minority) has a claim.
My advice to Nancy Silberkleit? Abandon your defense, get out your checkbook, and take some EEO training.
[Hat tip: BuzzFeed]