I have been counseling companies on employment matters for approximately 12 years. One thing that I have found to be consistent is that companies avoid engaging employment counsel until they feel it is an absolute necessity. However, in most scenarios, if counsel is engaged when you first learn of the situation, corrective action could be taken to help avoid claims against the company. It is much cheaper to prevent litigation than to defend it. This is true in medical accommodation issues, such as those involving employee use of prescription drugs.
So, what does a call with an employment lawyer sound like?
My actual conversations with clients are confidential. But I have attempted to summarize the tone of these client conversations through the following example. The facts and circumstances of this scenario are purely hypothetical. I’m using them for demonstrative purposes only. Don’t rely on this article as legal guidance for any real-world situation.
“She’s Taking Drugs!”
Client: “Good Afternoon, Julie.”
Lawyer: “Good Afternoon!” It has been quite a while since we last spoke. How may I assist you?”
Client: “I promise my lack of communication with the firm is not personal in any way. But we go to great lengths to minimize our calls with outside counsel in order to control legal costs.”
Lawyer: “I completely understand. None of my clients ever want to speak to me about work. It’s the nature of my business. Anyway, how can I help?”
Client: “We have an employee that was recently hired as a full-time Administrative Assistant in an office environment. She disclosed upon hire that she has a physical disability. And it’s sometimes necessary for her to take prescribed narcotics for the pain associated with her disability. She indicated that she could perform the essential functions of the job with or without a reasonable accommodation.”
[Click here for more on reasonable accommodations.]
“What’s Her Condition?”
Lawyer: “Does the company have a standard process for handling reasonable accommodation requests under the ADA [Americans with Disabilities Act]? If so, was the procedure followed in this case, and did the employee return the required paperwork?”
Client: “Yes. The company has written policies and procedures to address an employee who discloses a disability and requests accommodation. The documentation was provided to the employee, completed by her treating physician, and returned to the company.”
Lawyer: “Good. What does it say?”
Client: “According to the medical certification, the employee has undergone two separate back surgeries. It says she is still suffering from an extreme amount of low back pain.”
{Click here for more on the interactive accommodation process.]
“Can You Accommodate?”
Lawyer: “What accommodation has been requested by the employee and treating physician?”
Client: “Her doctor has prescribed narcotics to take as needed for pain. The employee is asking for an exception to the company’s Drug-Free Workplace Policy and the ability to take the prescribed narcotics during her shift as directed when needed for pain. We don’t make exceptions to the Drug-Free Workplace Policy, and therefore, we would like to deny the accommodation request and terminate the employee. All new hires are required to pass a nine-panel drug test and are subject to random and post-accident drug testing while on the job.”
Lawyer: “Is the position a sedentary job, or does it require physical activity? Does the position require driving?”
Client: “The Administrative Assistant position is a full-time desk job that does not require travel or driving and may involve bending or lifting of not more than ten pounds.”
Lawyer: “Has the company ever made an exception to the Drug-Free Workplace Policy for someone that tested positive on a pre-employment drug test?”
[Read more about the Drug-Free Workplace Act.]
“Well, in the Past . . . “
Client: “Yes. The President of the company has a teenage son that works in the warehouse. The son tested positive for marijuana on a pre-employment drug test, but he stated that he doesn’t smoke marijuana. He said he was at a party where others around him were smoking it. The company hired the employee. But he had to agree not to use marijuana or be around others that ingest marijuana in the future .”
Lawyer: “What about other situations involving employee use of prescription drugs?”
Client: “We haven’t reached this situation before involving prescribed narcotics.”
Lawyer: “Based on the information provided, it sounds like this employee is able to perform the essential functions of the Administrative Assistant job with a reasonable accommodation to the company Drug-Free Workplace Policy when necessary that would allow her to take prescription drugs for pain as needed while working. Due to the nature of the job, the accommodation requested would unlikely pose an undue hardship on the company or put the safety of the employee or coworkers in danger. Therefore, I think the company would have an obligation to make this accommodation. Are you aware of any other information that might support a different analysis?”
“What About . . . “
Client: “Is it possible for to argue that allowing an exception to the company’s Drug-Free Workplace Policy would create an undue hardship on us and possibly put the company at risk of losing one or more government projects since the contractual terms with the Federal Government require us to adhere to the Drug-Free Workplace Policy. We also feel like it will lead to a slippery slope when addressing these employee issues in the future.”
Lawyer: “As you know, an employer does not have to provide a reasonable accommodation if it imposes an ’undue hardship.’ Here, I’m afraid it would be difficult to prove that the requested accommodation under the ADA would cause an undue hardship. It should also be noted that the exception to the Policy would be for a prescribed medication rather than an drug being used illegally.”
Client: “Ugh! So What Should We Do?”
Lawyer: “If the employee can safely perform the essential functions of the job while taking the prescription drugs, then the requested accommodation should be granted. I suggest that someone from Human Resources speak to the employee to go over any restrictions she may have while under the influence of the prescribed medication in an effort to reasonably accommodate her disability and keep the workplace and employees safe. Unfortunately, you might need to modify her non-essential duties during periods of an accommodation.”
Client: “Do we have any alternatives here? Can we allow the employee to continue to work, but send her home when she is in pain and needs to take the prescribed medication?”
Lawyer: “Not without some evidence of increased risk of serious harm from letting her continue to work. If the treating physician believes the employee can safely perform the essential functions of the job while taking the prescribed narcotics, it would be risky for the company to deny the employee’s request. If you have a specific reason to believe the medical opinion isn’t reasonable then you might be able to get a second opinion.”
“Prevent Retaliation”
Lawyer: “And if you witness concerning behavior when she’s taking the medication, then we might want to revisit this. But her managers shouldn’t be singling her out or scrutinizing her more than others because of the prescription drugs she takes. That could create a retaliation situation.”
Client: “Yeah, I’ll be sure to mention that, and I hope we don’t have a follow-up call along those lines. Maybe it will all just work out.”
Lawyer: “I hope so. But you can certainly give me a call back if anything changes or you or her supervisors have additional questions.”
Be Proactive
Some of the calls that the firm receives are straightforward, but most of them involve relatively complicated fact patterns and nuanced solutions. In all situations, employers should understand their legal obligations with respect to protected activities to avoid future claims and litigation. Often, a simple communication with outside counsel could have prevented a claim from being filed in the first place. It’s best to be proactive. You can do this by developing and training all staff on the policies and procedures necessary to handle complicated personnel matters when they arise. Make sure they know when to reach out for expert advice to prevent issues from escalating.
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