Tag: disability discrimination

August 29, 2020

EEOC Issues New Guidance on Opioid Addiction

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued technical guidance on opioid addiction and employment. Workforce substance abuse is on the rise and can cause many expensive problems for businesses and industries. These problems can range from a loss of productivity, injuries, disruption of operations, and increased health insurance claims. While employers may prohibit the illegal use of drugs and alcohol at the workplace, they may not discriminate against a person based on drug addiction or alcoholism.

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits disability discrimination in areas including employment, transportation, and public services. Title 1 of the ADA focuses on the workplace and requires employers to make reasonable accommodations for employees with disabilities. The EEOC has enforcement responsibility for Title 1 of the ADA.

The ADA does not protect an employee or job applicant who is “currently engaging” in the illegal use of drugs. However, it does extend protections to employees who:

who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
are regarded, erroneously, as illegally using drugs.

EEOC Technical Documents on Opioid Addiction

Two new technical documents from the EEOC intend to provide clarity to existing requirements under the ADA.

The EEOC notes that this guidance “is not a new policy,” but instead explains existing principles.

“Use of Codeine, Oxycodone, and Other Opioids: Information for Employees”

This guidance document explains that those using prescription opioids, addicted to opioids, or who were addicted to opioids in the past may have the right to reasonable accommodations. The EEOC states that employers can’t fire a worker who lawfully uses opioids unless the employer first considers whether there is a way for them to perform their duties safely. The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine and illegal drugs like heroin.

Click here to access “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.”

Disqualification from a Job

The legal use of an opioid seldom automatically disqualifies an employee for a job. Conversely, employers can fire (or not hire) employees for illegally using opioids, even if there aren’t any safety or performance concerns.

In the case of legal opioid use by prescription, the employer must first consider whether the employee can do the job safely and effectively.

Reasonable Accommodations

Employers must provide reasonable accommodations to a job applicant or an employee who needs them because of a medical condition that qualifies as a disability under the ADA unless it would impose an undue hardship on the employer. Reasonable accommodations can include a change in the way things are generally done at work, including different breaks or work schedule, a change in shift assignments, and temporary transfers.

Employers may need to accommodate employees’ opioid use when the employee:

takes prescription opioids to treat pain;
is recovering from opioid addiction; or
has a medical condition related to an opioid condition.

Employees may request a reasonable accommodation from their employer at any time. In evaluating the accommodation request, an employer must engage in an “interactive process” with the employee. In some cases, the employer may ask the employee to submit medical documentation to support their request. An employer does not have to provide the accommodation requested if an alternative accommodation would also enable the employee to perform the essential functions of the job.

For more on reasonable accommodations, click here.

Sick Leave for Treatment or Recovery

When an employee requests to take a leave for treatment or recovery, an employer may be required to allow the individual to use accrued paid leave or permit the employee to take time off without pay if no qualifying paid leave is available.

Drug Testing

This EEOC guidance document emphasizes that if a business has a drug-testing program, employers should give any applicant or employee a chance to provide information about lawful drug usage.

“How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed”

This guidance document lays out the legal road map for healthcare providers. The guidance begins by describing workers’ ADA rights and the process of reasonable accommodations for disabilities. Then the guidance offers medical professionals tips on how to write and provide employers with medical documentation about a person’s condition.

When a patient asks for a reasonable accommodation, the employer may ask for medical documentation of the employee’s disability. This EEOC guidance on opioid addiction suggests that medical providers might include the

Medical professional’s qualifications and the nature and length of the relationship with the patient;
Nature of the patient’s medical condition;
Patient’s functional limitations in the absence of treatment;
Need for a reasonable accommodation; and
Suggested accommodations.

Click here to access “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”

Review Your Company Policies and Procedures

Not everyone understands the implications of disability discrimination laws related to opioid addiction. Employers should take this opportunity to review their policies and procedures related to employee drug use. Additional training for managers can also help avoid inadvertent violations of the ADA.

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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March 21, 2018

Association Discrimination in Employment

Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.

Forms of Association Discrimination

The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.

An employee may be able to claim harassment or discrimination based on:

a relative’s disability;
open association with or marriage to someone of a different race;
being a parent or caregiver to children; and
the protected activities of a relative.

Association Discrimination Under the ADA

The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.

The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Among the forms of discrimination it expressly prohibits is “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.

Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.

Association Discrimination Based on Race

Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.

Here are some examples of actual cases where a court recognized a theory of racial association discrimination:

White man alleged he was fired because of his marriage to a black woman.
White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.

Caregiver Discrimination

Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.

Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”

The EEOC has consistently taken this position, which it has described in assorted guidance documents.

Other Bases for Association Discrimination Claims

A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”

The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.

Retaliation by Association

In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.

Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”

Employer Responsibilities

Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.

Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.

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