Category: Discrimination

Prescription Drugs

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?”

[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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Sexual Harassment Training Notice

NYS Clarifies New Sexual Harassment Training Notice

All New York employers must provide annual sexual harassment training to all employees in the State. The deadline for the first annual training was October 9, 2019. Just before that date, the NYS Legislature added to the requirements for this training. These include providing each employee with certain documents at each training session. Recently, the State issued further guidance on this sexual harassment training notice requirement.

New Guidance

As of August 12, 2019, employers must provide all employees with “a notice containing such employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.”

The law didn’t otherwise explain what it meant by “notice”.

In online Frequently Asked Questions, the State now offers more information.

Timing

The law now requires employers to provide this information both:

  • at the time of hiring, and
  • at every annual sexual harassment prevention training.

Model “Notice”

It’s still not entirely clear whether employers have to provide something separate from the policy and training materials as a “notice”. However, the State has made a form document available as of October 2019 that appears intended to satisfy the requirement.

A copy of this “notice” document is available here.

Absent more specific guidance, employers will probably want to use this form document, modified as appropriate.

Training Materials

The new guidance explains that “training materials” include any printed materials, scripts, Q&As, outlines, handouts, PowerPoint slides, etc. used in the training.

Employers must provide copies of these documents in English. Employees whose primary language is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, or Italian, must also receive the documents in that language.

Digital Transmission

Especially for larger workforces, printing all of the training materials can be costly, or at least time-consuming. Fortunately, the State allows an alternative.

The law indicates that the notice and policy must be delivered in writing. However, the State acknowledges that means in print or digitally. It specifically permits email distribution. With electronic communication, the notice must link to or include the policy and training materials.

Prepare for Your Next Sexual Harassment Training

Whenever you provide sexual harassment training for New York employees, you should now give them the written notice, your sexual harassment policy, and the training materials. Keep records of the distribution. Ideally, obtain a signed acknowledgment from each employee to document their receipt.

Even if you don’t provide the full training to new hires, they must at least receive a copy of the policy and the most recent training materials. The State encourages employers to provide these materials to new employees by their first day of work and to train them as soon as possible.

 

For more on satisfying the New York sexual harassment training requirement, watch our recorded webinar: New York Sexual Harassment Training Update.

Domestic Violence Victims

New York Employers Must Give Domestic Violence Victims Time Off

On August 20, 2019, Governor Andrew Cuomo approved enhanced protections for domestic violence victims at work.  The New York Human Rights Law amendments will create additional obligations for employers to accommodate employees who have been victims of domestic violence.  The amendments take effect on November 18, 2019.

Who is a “Victim of Domestic Violence”?

These amendments modify the definition of a “victim of domestic violence” under the New York Human Rights Law.

Employees will qualify as a domestic violence victim if they or their child has been a victim of a criminal act that resulted in actual physical or emotional injury or has created a substantial risk of physical or emotional harm to such employee or their child. The criminal acts must also have been committed by a family or household member.

Family or household members include people related by blood, married to each other, living together, and others.

The law does not apply to employees younger than 16 unless they are married or have a child.

Legal Protections for Domestic Violence Victims at Work

New York employers may not discriminate against an individual because of their status as a victim of domestic violence.  This includes refusing to employ someone because they are a domestic violence victim; terminating an individual’s employment or negatively changing their compensation or other work conditions based on that status; and advertising any limitation related to employment based on such status. Harassment of an employee who has been a victim of domestic violence is also prohibited.

Plus, the Human Rights Law adds a new affirmative requirement to provide reasonable accommodations to employees who have experienced domestic violence.

What Is the Employer’s Duty to Reasonably Accommodate?

Employers in New York will be required to reasonably accommodate victims of domestic violence who need a reasonable amount of time away from work for any of the following reasons that pertain to an incident or incidents of domestic violence:

  • Seeking medical attention for injuries;
  • Obtaining services from a domestic violence shelter, program or rape crisis center;
  • Getting psychological counseling, including for a child who is a victim of domestic violence;
  • Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, which may include temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of an offense, or appearing in court.

In these situations, employers must provide reasonable accommodations unless they would pose an undue hardship. The degree of hardship depends on several factors. These include the overall size of the employer’s business, the nature of the business, and the structure of its workforce.

Employee Obligations for Receiving Accommodation

An employee seeking time off as an accommodation will need to provide the employer with reasonable advance notice whenever possible.

Employers may require a certification in cases where the employee does not provide advance notice. Acceptable documentation includes:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or counselor that the employee or his or her child was undergoing counseling or treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence.

If an employer has a policy that includes paid time off, such as vacation, it may require the employee to use earned paid time off for a protected absence. However, if the employee has no available paid time off, the employer does not have to pay the employee.

An employee who must be absent from work as a domestic violence victim accommodation has the right during the absence to continue any health insurance coverage provided by the employer.

Confidentiality

Under these amendments, employers must keep information about an employee’s status as a victim of domestic violence confidential.

The law does not expand on this obligation. Presumably, employers must be able to discuss the situation to the extent necessary to provide necessary accommodations. However, disclosure of the reason for an employee’s absence to co-workers could violate this new requirement.

What Should Employers Do Now?

You must ensure that managers recognize these new responsibilities. This especially includes both the requirement to maintain confidentiality and the obligation to allow time off from work to domestic violence victims. And be sure to take such requests seriously. Although employers might be able to deny time off in some cases, the law is intended to protect employees even if it inconveniences business operations.

 

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