Category: Disability

November 20, 2019

Calling Your Employment Lawyer – Prescription Drugs

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?”

“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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July 5, 2018

Employee Drug Addiction and Alcoholism in New York

There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection. However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.

April 11, 2018

Firing Employees on Medical Leave

Can you legally do this? Yes . . . maybe. Firing an employee on medical leave is a tricky proposition. But sometimes it is appropriate. Even then, it might not go over well.

Let’s review some of the legal issues and practical considerations that come up in this area.

Legal Protections

The full range of legal protections for employees on medical leave depends on where the employee works. But the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) apply throughout the United States. We’ll focus on those laws here, but you should also consider any similar state or local laws that may apply.

ADA

The ADA covers all employers with at least 15 employees. It prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations may include unpaid medical leave. (Read more: Is Time Off a Reasonable Accommodation?)

Just as refusing time off to an employee with a disability might violate the ADA, so might ending their employment while they’re out of work.

FMLA

Employers with 50 or more employees must allow eligible employees to take up to 12 weeks of unpaid leave per year for specific reasons. These reasons include the employee’s own serious health condition.

Most employees on FMLA leave have the right to return to work at the end of their leave. It is also unlawful to retaliate against an employee for taking FMLA leave. These protections may come into play if an employer seeks to end the employment of someone on FMLA leave.

What You Can’t Do

Employers can’t fire a qualified employee because of their disability . . . . Unless the disability prevents them from performing the essential functions of their job despite any reasonable accommodations.

There are many reasons why managers may get frustrated with employees who seem to never be at work. But there has to be more than just not wanting to deal with someone with a medical condition.

Employers covered by the FMLA also shouldn’t automatically fire an employee who doesn’t return at the end of 12 weeks of FMLA leave. An employee with a medical condition might still be eligible for additional time off as a reasonable accommodation under the ADA.

When Could You Fire an Employee on Medical Leave?

There aren’t many absolutes here. Each situation is different and may raise unique concerns, but here are some times when an employer might be able to separate the employment of someone on medical leave:

The business is closing, so everyone is losing their job.
You are eliminating the person’s position–especially if others not on leave will also lose their jobs without being replaced.
The employee has falsified the medical basis for leave.
You’ve discovered misconduct that warrants termination regardless of leave status.
The employee won’t be able to return for an extended period of time, such that continuing employment is not a reasonable accommodation or would impose an undue hardship.

The above list roughly moves from straightforward to more complicated analyses regarding employees on medical leave. In particular, the last situation involves the complex evaluation of when an accommodation is no longer reasonable–which seldom has an easy answer.

Putting It All Together

Employers should understand that employees are not automatically untouchable just because they’re on medical leave. But, it adds a factor to consider before making the termination decision. The situations posed above are only some of the more common that could occur. As each case raises its own nuances, employers should consult with experienced employment counsel when faced with these decisions.