Monthly Archives: November 2013

Mystique Casino Shows Good Drug Test Policy Pays Dividends

by ,

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.