Category Archives: ADA

Mystique Casino Shows Good Drug Test Policy Pays Dividends

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Good Policies Make for Good Outcomes

Flickr via Creative Commons

Flickr via Creative Commons

After an employee with long history of taking prescription drugs refused to take employer-required drug test after injury, he was terminated. The case went to a jury, who awarded a verdict in the employee’s favor.  On appeal, Iowa’s Court of Appeals reversed the jury’s verdict, finding that the the employee’s claim should not have survived to be submitted to the jury when Mystique had a well-defined policy warranting the employee’s termination for refusing to submit to the drug test.

I. Background

After he refused to submit to a drug test and was fired, Phillip Brown sued his employer, Mystique Casino (“Mystique”) under the theory that he was a person with a disability under the provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), and that he had been improperly terminated from his employment.

In 1980 Mr. Brown injured his left leg on an oil rig. The injury caused “drop foot,” which prevented him from lifting his left foot up and necessitated a brace on his left leg, and necessitated medications, including narcotic analgesics, for nearly thirty years. Mr. Brown’s work history showed that this did not historically affect his ability to secure employment as a mechanic, welder, and fabricator.

Mr. Brown’s employment relationship with Mystique began in October 1999, when he was hired as a maintenance laborer, which required that Brown operate power tools, drive vehicles, and use other powered equipment.

In 2006, a supervisor was made aware Brown was taking hydrocodone while on the job for his pain. The supervisor informed Brown that he could not operate power tools or drive vehicles off the company premises while on this medication.

Brown informed the supervisor about four months later that he was off the medication, and he was released to normal duties by the supervisor. Despite his representations to Mystique, Brown continued to take his prescription painkillers while at work.

II. Mystique Discovers Extent of Opiate Use

In February 2010 Brown requested and was granted time off because of problems with his left leg. After four weeks off, he returned to his job, but Mystique insisted that Brown furnish a physician’s release.

In the letter Brown provided, his physician detailed Brown’s prescriptions for hydrocodone, oxycodone, and hydromorphone, but it also identified other non-opiate medications that were available for pain control.

Mystique told Brown he could not return to the job until he was off his narcotic medications because it believed the opiates were for temporary use only. At Brown’s physician’s suggestion, Brown and Mystique arrived at a compromise prohibiting Brown from bringing his narcotic pain medication onto the casino property, but permitting him to use them while away from the work site. Under the terms of this agreement, Brown returned to work on May 27, 2010.

III. The Termination and Brown’s Claim

On June 10, 2010, Brown cut his finger at work, reported it to the shift supervisor, and left work in a hurry and without showing the injury to the company EMT. When Brown reported for work the following day, his immediate supervisor instructed Brown to show the injury to the company EMT, who decided Brown needed to go to a nearby hospital to determine if stitches were needed.

At the hospital, Brown was required to submit to a drug test because Mystique’s drug testing policy required it in the event of an accident resulting in injury. Brown refused to submit to the test. While his supervisor and medical personnel at the hospital assured Brown the test was to check only for illegal substances Brown still refused.

Mystique’s policy provided that refusal was deemed the same as a positive test, and Mystique terminated Brown’s employment. Brown filed a lawsuit under the ADA, claiming that Mystique terminated him based on his disability, and Mystique responded that Brown was terminated for violating the company’s drug and alcohol policy, not because of the disability.

IV. Jury Awards Damages, Finds ADA Violation

After hearing the evidence, the jury determined that Brown’s impairment was a “motivating factor” in Mystique’s decision to terminate him, and awarded Brown $75,000 in back pay and $60,000 in compensatory damages, and a later award for attorney fees in the amount of $18,865 was entered.

Some deft lawyering by Mystique resulted in an appeal, and the result of the appeal provides some teaching moments for employers when thinking about ADA litigation and compliance issues.

V. The ADA “Motivating Factor” Standard and Teaching Moment

For a Plaintiff to establish a claim of disability discrimination, the Plaintiff must prove: (1) (1) he had a disability under the ADA, (2) he was qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered an adverse employment action because of his disability.

Under the third factor cited above, a Plaintiff must show the employee’s disability was a “motivating factor” in the employer’s decision to take an adverse employment action.

Unfortunately for Brown, but fortunate for employers, is that the ADA permits employers to prohibit drug-related misconduct in the workplace. Further, the ADA does not prohibit employers from testing for illegal drugs, or making employment decisions based on drug test results.

Under Mystique Casino’s drug and alcohol policy, it was able to test when Brown had an accident at work. While Brown claimed his employer’s request that he take a drug test was unreasonable, Mystique showed that it had a policy. The policy required Brown to submit to a drug test, and the policy provided that failure to submit was equivalent to a positive drug test. Therefore, the Court determined that the jury should not have decided the case because Brown failed to establish that he was entitled to relief.

Mystique prevailed in this case, despite the jury’s award, because it had a policy in place, it applied that policy consistently, and the policy provided disciplinary results for failure to submit to a drug test. While not all policy provisions can be reverse engineered from good results for employers in litigation, Mystique’s case provides an excellent reminder to check to make sure your policies provide for not only legal, but sensible, predictable outcomes.

Alcohol in the Workplace – What if Your Employee Has an Alcohol Problem?

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Creative Commons / Chris Cotterman

Creative Commons / Chris Cotterman

Jonathan Blazek has a problem.

This isn’t to say he didn’t already have problems.  One was his drinking.

The other was getting caught drinking 21 ounces of whiskey during a shift as a snowplow driver.  That one got him terminated.

His new problem is that yesterday, October 9, a federal Court in Ohio tossed out his “alcohol discrimination” (as a disability) claim against his employer, the City of Lakewood.  The Lakewood Patch in Ohio reports that a federal judge granted the City’s Motion to Dismiss the case, finding that Mr. Blazek wasn’t terminated for his alcoholism, but for drinking on the job.

This was after a 23 year stint of employment which had brought him up to a $59,000 yearly salary.

Maybe you are not jaded like me.  Maybe you are surprised an employee would claim alcoholism is a disability.

But that’s just it – they do.

Because it is.  Just ask the United States EEOC.

Let this one serve as a reminder.  Alcoholism, like extreme allergies, depression, anxiety, and a list of other ailments that may surprise you, qualifies as a disability under the ADA.

While you can’t terminate your employee for being an alcoholic, you can terminate for drinking on the job.  Remember, it’s ability to perform the job functions that matters.

“FRD” Identified by AARP as New Associational Discrimination Matter Requiring Attention

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From Wikimedia under Creative Commons license

From Wikimedia under Creative Commons license

Prompted by this update from from today, I discovered the AARP has produced a white paper (full version at the link) from the AARP Public Policy Institute, billing itself as the “first in a series of AARP Public Policy Institute papers on issues of eldercare and the workplace.”

Titled “Protecting Family Caregivers from Employment Discrimination,” the white paper is authored by Joan C. Williams, Robin Devaux, and Patricija Petrac, from the Center for WorkLife Law, at the University of California, Hastings College of the Law and Lynn Feinberg, from the AARP Public Policy Institute.

Central to the paper is the concept of family responsibilities discrimination (“FRD”), which, again quoting the paper, “arises from the unfair treatment of workers with caregiving responsibilities, including workers caring for children, older adults, ill spouses, or other family members with disabilities.”

FRD Issues in Eldercare

While acknowledging that caregiving extends to all manner of individuals, the white paper focuses on eldercare.  It quotes some interesting statistics on the general “graying” of the american workforce, but it identifies that, while no existing law specifically covers the alleged bias against caregivers, that the following existing laws provide workers protection:

The Family and Medical Leave Act of 1993: The FMLA creates rights for eligible employees to take unpaid, job-protected leave for, e.g., caring for a parent or spouse with a “serious health condition.”  The law prohibits an employer from denying or discouraging such leave or from retaliating against anyone who requests or has taken FMLA leave.

The Americans with Disabilities Act of 1990: The ADA prohibits discrimination based on “association with” an individual with a “disability” as defined in the law, which has recently been expansively amended.  The ADA also offers protection to workers caring for individuals with disabilities.

The Rehabilitation Act of 1973:  The Rehabilitation Act was created to extend and revise the authorization of grants to States for vocational rehabilitation services, and it prohibits discrimination based on disability by the federal government, federal contractors, and recipients of federal financial assistance.  The standards used to determine employment discrimination are the same as those used in Title I of the ADA.

The Employee Retirement Income Security Act of 1974:  ERISA prohibits employers from firing or discriminating against any employee to prevent that employee from exercising his rights under any benefit plan.

Title VII of the Civil Rights Act of 1964:  This Act prohibits discrimination on the basis of race, color, religion, sex or national origin.  The white paper suggest that women caregivers, for example, may be able to allege discrimination if they have been mistreated based on gender stereotypes, like being less committed to their job than men.

The Age Discrimination in Employment Act of 1967: Prohibits discrimination against any employees 40 years of age or older.  Older working caregivers may have a basis to claim that family responsibilities trigger age discrimination in the workplace.

More importantly, the white paper identifies over 67 local municipalities in the more than 20 states with local ordinances or other laws prohibiting family responsibilities discrimination.  As employers, we should keep these on the radar, because it would appear that not only will these “associational discrimination” claims continue to be an issue, but further that at least the AARP will be pushing for more legislation on this issue in the future.

Recent EEOC Suits Highlight Importance of “Interactive Process” for Reasonable Accommodation under ADA Claims

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As a follow up to my piece yesterday, concerning Hancock Fabrics’ failure to engage in the required “interactive process” after an employee requested accommodation, I came across this concerning two EEOC lawsuits recently filed and concerning the same issue.  These EEOC suits, one in Maryland against KMart, and another against a car dealership in Arkansas both detail ADA issues that arose after the employer failed to consider an employee’s requests for accommodation.

Where Did These Employers Falter under the ADA?

It’s important to remember that these are simply lawsuits, based on claims by the EEOC and the individuals whose claims the EEOC is trying to enforce.  That said, the EEOC initiated both suits as a result of its commitments to its Strategic Enforcement Plan, which includes one goal (among six) to “address emerging and developing issues in equal employment law,” including reasonable accommodation.

If the EEOC is focusing on these issues, employers should.

The Kmart lawsuit (EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation; Civil Action No. 13-cv-02576) involved a potential employee (“PE”) who had been offered a position but needed to complete a drug screening prior to hire.  The drug test required that the PE submit a urine sample, which the PE was unable to do because of the PE’s kidney problems that necessitated regular dialysis.  The PE conveyed this to KMart and ask if there was an alternative way to submit to the drug screening, such as a blood test or hair sample.  Two weeks later, KMart advised the PE that all new hires submit to the standard urine drug test and denied the PE employment.

The Randall Ford car dealership in Fort Smith, Ark., is alleged to have violated federal law when it did not accommodate a used car manager who was allegedly terminated because of his disability (Docket No. 13-2206).  The EEOC’s suit alleges that Randall Ford violated the ADA when it refused to accommodate the used car manager’s disability as a result of a spinal surgery.  The manager asked to use a golf cart and for help in test-driving vehicles to determine their trade in value.  The company had the golf carts, but did not discuss the suggested accommodations with the manager, instead terminating him for unrelated misconduct.

An ADA Request for Accommodation Requires Employer Action

Ignorance is not bliss in this area of the law.  A request for accommodation requires action by the employer.  The cases show that the process does not have to be formal.

Even if the request is outrageous, no response from the employer means the employer has failed to engage in the interactive process required under the law.

Hancock Fabrics Missed the Boat After Employee’s Request for Accommodation Under ADA

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From juliejordanscott through flickr under CC 2.0 license

Viajuliejordanscott through flickr under CC 2.0 license

ADA claims are complicated.  Not only is there the rapidly changing law to contend with (and recent, very expansive, amendments), but there are nearly always substantive medical issues, and disputes about what they may or may not mean for the employee’s ability to work and the employer’s corollary obligation to provide accommodations.  Trials are complicated with medical experts, vocational experts, and so on.

Zimple v. Hancock Fabrics

In this recent case, Plaintiff Jolynn Zimple brought a lawsuit against Hancock Fabrics (“Hancock”) for claims of violation of the American with Disabilities Act (ADA) and the Iowa Civil Rights Act (ICRA).

The gist of her Complaint was that Zimple worked as the manager of the Waterloo, Iowa, Hancock store.  She claimed a prior right shoulder injury, and she was then injured during her employment, but was later released to work with restrictions not to lift over 20 pounds or lift anything above shoulder height.

Unfortunately, after she was released, Zimple had disagreements with her employer about whether she could do her job.  According to Zimple, she told her employer she was capable of working, possibly with an accommodation.  Hancock encouraged Zimple to either file workers’ compensation, take leave under the Family and Medical Leave Act (FMLA), or both.

Later, Zimple was placed on unpaid leave without having requested it (big no no).

The Claims

Zimple claimed that Hancock’s conduct in placing her on unpaid leave and not letting her return when the leave expired constituted a termination of her employment, was discrimination against her based on her disability, and was retaliation against her for seeking an accommodation.

Hancock sought to have the Court grant summary judgment in its favor, arguing that Zimple (1) could not perform the essential functions of her job, with or without reasonable accommodation (a good defense if you do it properly) and (2) that it had a legitimate non-discriminatory reason for her termination.

With respect to the first defense, the employer’s problem was that the record abound with disputes about just what were the essential functions of her position.  Three distinctly separate job descriptions were provided, and the employer didn’t really explore what Zimple could do (current, clearly defined job descriptions defining the essential functions are, for lack of a better word, essential).

Request for Accommodation Triggers the Employer’s Obligation to Engage in “Interactive Process”

Second, and more importantly, the employer failed to engage in the “interactive process” to develop a reasonable accommodation for the circumstances.  This was based on one email Zimple sent to her superior, wherein she requested the following:

With the cut in hours and with my permanent injury there are several times during my shift that there is only one person here with me. The problem is when we get busy I’m unable to help with the fabric and/or Deco I’m able to run the register but not necessarily the cutting. When I try to cut, I can cut for about 10 minutes then the pain in my shoulder starts and also my hand. We do have customers complain. What do you want me to do? Can you release some payroll to help with this problem if not what do you want me to do?

In the Court’s eyes, this was “a request to engage in an interactive process to develop a reasonable accommodation.”

The employer goofed because it never fully responded to this email request.  The employer instead denied her request to do payroll, but didn’t offer an alternative to it, didn’t show themselves as open to doing so, and did not offer to further discuss any other alternatives.

Instead, Hancock involuntarily placed Zimple on unpaid administrative leave and effectively terminated her when her leave ran out.  As a result, the Court determined that Zimple’s claims would proceed to a jury and denied Hancock’s request to have the lawsuit disposed of (via summary judgment) before trial.