Opioid and Other Drug Use or Addiction - Workplace Issues

ADA Update Linda Carter Batiste, J.D., JAN Principal Consultant, and Jeanne Goldberg, Senior Attorney Advisor in the Office of Legal Counsel at the U.S. Equal Employment Opportunity Commission. JAN is a service of the U.S. Department of Labors Office of Disability Employment Policy. 1 Selected New Cases: ADA Reminders, Pitfalls & Best Practices Dont Rescind Job Offer Based on Impairment if

Individual is Qualified and Does Not Pose Direct Threat EEOC v. Kaiser Aluminum Washington, LLC, No. 2:16-cv-00343 (E.D. Wash. consent decree entered Oct. 18, 2017). EEOC alleged aluminum manufacturing company rescinded job offer to production worker because of record of or perceived disability, in violation of ADA. During post-offer exam by outside medical provider, aluminum company production worker disclosed he had broken left heel 10 years ago, was off work for year, and had undergone vocational training, but said he had no current problems related to the injury Medical provider recommended employer revoke job offer because records from 2004-06 indicated the disability was permanent

Dont Rescind Job Offer Based on Impairment if Individual is Qualified and Does Not Pose Direct Threat (cont.) Applicant contacted employer directly and explained, describing jobs held since injury and that he could perform all physical duties of position. Employer told him it does not override medical providers recommendations. Settled: 3-year consent decree; $125,000 in back pay and $50,000 in compensatory damages, and, subject to an examination and test described in decree, reinstatement of job offer, with retroactive seniority, as well as ADA training for human resources staff and medical and nurse contractors as specified in decree, and annual reporting to EEOC. See also EEOC v. Amsted Rail Co., Inc., Civil Action No. 14-cv-1292-JPG-SCW (S.D. Ill. consent decree entered June 2018). $4.4. million settlement of claim that employer violated ADA by excluding job applicants based on results of post-offer

nerve conduction test for carpal tunnel syndrome. Employee Can Have Medical Restrictions and Still Be Qualified Dont Require 100% Healed EEOC v. American Airlines, Inc. and Envoy Airlines, Inc., No, 2:17-cv-04059 (D. Ariz. Nov. 6, 2017). EEOC alleged airline denied reasonable accommodations, terminated, denied rehire to individuals because of their actual or perceived disabilities. Claimants had various impairments, including lupus, cancer, asthma, stroke, and knee and back injuries. Airline had 100% healed policy: employees on medical leave cannot return to work if medical restrictions Also refused to provide intermittent leave or reassignment to a vacant position as reasonable accommodations, and did not permit employees with

permanent restrictions to apply for promotions. Many terminated, placed on unpaid leave, or refused rehire because of medical conditions that were substantially limiting impairments, or that were not both transitory and minor. Employee Can Have Medical Restrictions and Still Be Qualified Dont Require 100% Healed (cont.) Settled: 2-year consent decree providing $9 million, with 1500 eligible claims to be evaluated by a settlement administrator. Airline to appoint ADA coordinators, who among other responsibilities will review and revise job descriptions so marginal job functions are not listed as essential. Coordinators will assign reasonable accommodation responsibilities to HR employees, and will review all situations in which requests for reasonable accommodation are denied and assess whether an accommodation in employees current job, or a reassignment, is available, and if so, instruct

the appropriate personnel to provide the accommodation or reassignment. Coordinators will also implement the ADA training specified in the decree. Every 6 months, defendants will report to EEOC on complaints of disability discrimination and retaliation and on requests for reasonable accommodation and the outcome. Employer Requirement is Not Necessarily an Essential Function Lewis v. Union City, 877 F.3d 1000 (11th Cir. 2017). Jury would have to decide whether exposure to pepper spray and Taser shocks were essential functions of police detectives position. police department implemented new requirement that police officers carry Tasers; officers would get 5-second shock as part of training on how to use device detective had small heart attack about 18 months earlier; her doctor asked that she be excused from receiving this shock or being exposed to pepper spray, and she was ultimately fired

employers judgment about what constitutes an essential function is critical, and court noted additional weight might be accorded when employer is police department, but employers judgment is not necessarily conclusive there was significant evidence that exposure was not essential function written job description for detective, including sections devoted to physical demands and work environment, did not mention carrying or to being exposed to pepper spray or Taser shock Taser International did not require trainees to receive a shock to become certified prior to the new requirement, officers were permitted to choose what form of nonlethal weapon to carry Essential Functions are the Tasks Performed, Not How Those Tasks Have Usually Been Performed Dunlap v. Liberty Natural Products, Inc., 878 F.3d 794 (9th Cir. 2017). Evidence at trial sufficient to support jury verdict in favor of shipping clerk on claim denied

accommodation for restrictions on lifting, pushing, or pulling. Employer argued lifting, pushing, pulling were the essential functions, but it was moving the boxes. Qualified because she could have performed essential function of moving boxes from point A to point B if employer had allowed her to use rolling cart or other assistive device (manual or motorized) as an accommodation. Employer on notice of her limitations, but did not consider or implement her proposed accommodations, and failed to show undue hardship. Onsite carts and other affordable assistive devices, such as a scissor lift table, were readily available, but employer discouraged cart use, failed to discuss or provide assistive devices, and instead terminated employee based on perception she was unable to do essential job functions. Sometimes Performance of Essential Functions

Requires Presence in Particular Work Environment Brown v. Milwaukee Bd. of Sch. Dirs., 855 F.3d 818 (7th Cir. 2017). Assistant school principal had severe arthritis in her knee that worsened after injured trying to restrain an unruly student. Requested reassignment to avoid contact with potentially unruly students, but all positions required this. Held: while some job functions may be performed without regard to work environment, other job functions require employee be in a specific work environment. Here all positions involved student contact. Court also rejected claim proximity to students cannot be considered an essential function when applying the regulatory factors used to determine the essential functions restriction from encountering students because they might become unruly meant she could not patrol the hallways, meet with students, and observe classes all essential functions of various jobs she wanted as a reassignment

Must Be Able to Perform Duties When Required Jordan v. City of Union City, Ga., No. 15-12038, 2016 WL 1127739 (11th Cir. Mar. 23, 2016). Probationary police officer with anxiety, mood, and panic disorders was fired when experienced anxiety episode that caused another officer to believe plaintiff required medical attention. Held: officer could not react quickly and calmly to high-stress and potentially lifethreatening situations when trying to manage the effects of an anxiety episode Although episodes did not necessarily occur frequently, they were unpredictable and largely uncontrollable While fully capable of performing the duties of his position much of the time, even an infrequent inability to perform the essential functions of the position is enough to render a plaintiff not a qualified individual under the ADA.

Telework: Fact-Specific Analysis Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018). Employer violated ADA when it denied in-house corporate attorneys request to telework for 10 weeks while on bedrest due to complications from pregnancy: although trying cases in court and deposing witnesses were in the attorneys job description, she had never been called on to do so in 8 years working for employer coworkers and outside counsel with whom she worked closely testified that she could perform her essential functions while teleworking for 10 weeks had previously teleworked two weeks after surgery a year earlier, and for 3 weeks while accommodation request pending

Telework: Fact-Specific Analysis Credeur v. Louisiana, 860 F.3d 785 (5th Cir. 2017). Employer did not violate ADA when it required litigation attorney to take leave rather than full-time telework: she initially sought and was granted part-time telework following complications from years-earlier kidney transplant, but soon thereafter requested full-time telework evidence showed litigating attorneys could only work from home only rare occasions and temporarily; job was interactive and team-oriented employee was having difficulty keeping up with her work and some of it had to be assigned to others, placing a strain on the office she failed to complete certain administrative tasks while teleworking, such as adequately accounting for her time although 2 coworker attorneys teleworked, one only did it outside regular work hours, and other was not a litigator

Telework: Fact-Specific Analysis Everett v. Grady Memorial Hosp. Corp., 703 Fed. Appx 938 (11th Cir. 2017). Employer did not violate ADA when it denied full-time telework certain essential functions of plaintiffs job specifically, teaching classes, meeting with patients, and supervising another employee could not be performed from home, and accounted for 1/3 of her time Pending: EEOC v. Advanced Home Care, Inc., Civil Action No. 1:17-cv-00646 (M.D.N.C. filed July 12, 2017), www.eeoc.gov/eeoc/newsroom/release/7-12-17.cfm. EEOC alleges employer violated ADA when it denied telework requests by patient account representative diagnosed with COPD seeking to return to work after medical leave for hospitalization; needed to telework to avoid fragrances, scents, and odors that aggravate her respiratory conditions.

Reasonable Accommodation Does Not Require Excusing Prior Misconduct Guzman v. Brown Cty., 884 F.3d 633 (7th Cir. 2018). Call center operator failed to request a reasonable accommodation before she was fired for excessive tardiness. never told employer about her sleep apnea diagnosis and related symptoms violated strict rules on tardiness, and management decided to fire her then she presented letter from her psychiatrist stating she most probably had sleep apnea Held: Employer did not violate ADA by proceeding with termination; misconduct giving rise to termination had already occurred, so accommodation request made too late Monroe v. Dept of Transportation, 871 F.3d 495 (7th Cir. 2017). Abusive

behavior to coworkers caused by PTSD warranted discharge; it did not matter that the behavior was caused by disability. Give Employees With Disabilities the Benefit of the Same Treatment Others Receive Caldwell v. KHOU-TV, 850 F.3d 237 (5th Cir. 2017). Court held employer may have discriminated against employee with disability by not counseling him for alleged performance problems, where individuals without disabilities were counseled and, therefore, given an opportunity to improve. Banim v. Florida Department of Business and Professional Regulation, 689 F. Appx 633 (11th Cir. 2017) (unpublished). Court held employer could require Daily Activity Reports from employee who was

allowed to telework as an accommodation, where it required these reports from other employees who teleworked. Going Above and Beyond What the Law Requires Boyle v. Pell City, 866 F.3d 1280 (11th Cir. 2017). plaintiff, heavy equipment operator with back impairment, was permitted by employer to perform office work for several years, and then to perform foreman duties (foreman voluntarily agreed to temporarily perform heavy tasks and mechanic duties) arrangement lasted almost 7 years; plaintiff retained original job title and lower salary new superintendent restored plaintiff and foreman to their original duties court held: going above and beyond what ADA required did not obligate employer to continue the arrangement it had made when an employer provides a greater accommodation than that required under the law, it

"incurs no legal obligation to continue doing so court noted that foreman position was never vacant during this time, and even if it had been, there would have been no obligation to promote the employee to this position since it was a higher-level job reasonable accommodation does not require employer to force coworker to leave position, to create a position, or to promote plaintiff to a higher level vacancy even if one exists Trending Issues: Animals in the Workplace Is Allowing Employee to Bring Emotional Support Animal into Workplace a Reasonable Accommodation? DOJ regulations under Titles II and III of ADA (state/local government programs/activities other than employment, and public accommodations):

for members of the public/customers, there is an obligation to admit service animals trained to perform a task, but not animals that provide emotional support but do not perform a service EEOC regulations under Title I of ADA (employment) include no such limitations, and the Commission hasnt addressed the issue as such in guidance or federal sector appellate decisions have for applicants/employees, employers should process request to use service animal or emotional support animal same way as any other accommodation Interactive Process Animals in the Workplace Where a disability (e.g., blindness) and the fact that the employee needs the accommodation (e.g., guide dog) are obvious, employer may

not need any documentation. Where the disability and need for accommodation are not obvious or already known, employer may request reasonable documentation just as with any accommodation request to demonstrate that employee has impairment that substantially limits major life activity and needs the accommodation. Job Accommodation Network publication: Service Animals in the Workplace, https ://AskJAN.org/media/downloads/ServiceAnimalsintheWorkplace.pdf What if Presence of an Animal Affects Other Employees? What if other employees may experience severe allergic reactions or phobias related to the presence of a service animal?

Possible accommodations might include Separate paths of travel to minimize employees exposure to service animal Telework or other flexible schedules to minimize days on which the employee who uses the service animal and another employee affected by service animal are physically present in workplace Alternatives to in-person communication, such as by allowing participation in meetings by phone, even when employee is in office Examples of facts that would show allowing service animal poses undue hardship: if the animal is disruptive poses a direct threat (i.e., a significant risk to health or safety) not properly controlled by its handler Case Example: Maubach v. City of

Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018). Dispatcher in enclosed emergency operations center shared workspace sought to bring emotional support animal (Mr. B) to work for anxiety. Undue hardship found: floor covered with clumps of fur and dander from dog, and dog bed left there coworkers experienced allergies even after dispatcher vacuumed dispatcher allowed inexperienced coworker to cover center while he walked dog Title I has no specific regulations or guidance related to service animals or emotional support animals, and there is very little case law addressing the question whether an emotional support animal can qualify as a reasonable accommodation for a disabled employee. Here, it is assumed without deciding that an emotional support animal qualifies as a reasonable accommodation under Title I of the ADA. Thus, the inquiry turns to the reasonableness of the particular

accommodation in the particular employment context, namely whether Mr. Bs presence in the EOC as an emotional support animal for plaintiff is a reasonable accommodation for her disability or whether Mr. Bs presence imposes an undue hardship on defendant given the context in which plaintiff works. Case Example: Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018). (cont.) If Mr. B were a service animal under Title II or III of the ADA, as he is not on this record, then allergies would not be sufficient on their own to justify barring Mr. B from public spaces. See 28 C.F.R. 36.104. Title II and III of the ADA address the use of public spaces and public accommodation by the disabled, and if allergies were a sufficient justification to bar service animals from accompanying their owners in public accommodations, then because allergies are so common the disabled who use a service animal would be effectively barred from use of public accommodations. In the context of Title I, some jobs might be able to accommodate the presence

of a service animal, and Title Is lack of definitive requirements with regard to service animals and other reasonable accommodations suggests that the inquiry must be context specific. allergies resulting from plaintiffs use of Mr. B in the enclosed EOC space, in this context, impose an undue hardship on other employees who use the space, and on defendant because it would be prohibitively expensive to build a separate EOC to be used either by the plaintiff or by the employees with allergies. Resources on Service Animals and the ADA Employment: JAN publication: Service Animals in the Workplace https://AskJAN.org/media/downloads/ServiceAnimalsintheWorkplace.pdf Non-Employment (Access to Public Accommodations and State/Local Government

Programs): DOJ publication: Frequently Asked Questions About Service Animals and the ADA https://www.ada.gov/regs2010/service_animal_qa.html Trending Issues: Drug Use, Addiction, & Treatment ADA Statutory Provisions on Illegal Use of Drugs 42 U.S.C. 12210(a): individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs when the covered entity acts on the basis of such

use; see also 12114 42 U.S.C. 12210(d): illegal use of drugs defined as use, possession, or distribution of drugs unlawful under federal Controlled Substances Act (CSA), 21 U.S.C. 801, et seq., except use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the [CSA] or other provisions of federal law ADA Statutory Provisions on Illegal Use of Drugs (contd) 42 U.S.C. 12114(a): qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. 42 U.S.C. 12114(b): Rules of construction. - Nothing in subsection (a) of this section shall be

construed to exclude as a qualified individual with a disability an individual who(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or (3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs. ADA Statutory Provisions on Illegal Use of Drugs (contd) 42 U.S.C. 12114(c): ADA does not prohibit employers from: prohibiting all employees from illegal use of drugs and use of alcohol at workplace, or being under influence at work

holding to same performance standards as others, even if any unsatisfactory behavior or use is related to the drug use or alcoholism of such employee requiring employees comply with drug-related federal regulations (DOD, NRC, and DOT) that apply to that workplace testing for illegal use of drugs (shall not be considered medical exam under ADA) What Result Under ADA if State Law Legalizes Recreational or Medical Marijuana Use? ADA expressly excludes those engaged in current illegal use of drugs from definition of disability, and allows employers to act on basis of test results for illegal use ADA defines illegal use by reference to federal Controlled Substances Act (CSA) Marijuana use, even legal under a state law for recreational or medical purposes, is unlawful under federal CSA

Therefore, no federal ADA protection for employees where employer acts based on employees current marijuana use. James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) (in ADA Title II case, court held ADA does not protect marijuana use even though state has legalized it for medical treatment); Steel v. Stallion Rockies Ltd., 106 F. Supp. 3d 1205 (D. Colo. 2015) (dismissing ADA claim by medical marijuana user terminated following his positive drug test); Washburn v. Columbia Forest Products, Inc., 340 Or. 469, 134 P.3d 161 (2006) (holding employer had no obligation under state law to accommodate employee who used medical marijuana and was terminated after testing positive). What Result Under ADA if State Law Legalizes Recreational or Medical Marijuana Use? (cont.) However, employer must actually act on basis of illegal drug use, not cite it as pretext for disability discrimination.

EEOC v. Pines of Clarkston, No. 13-CV-1407, 2015 WL 1951945 (E.D. Mich. Apr. 29, 2015) (reasonable jury could conclude employee was fired because of her epilepsy rather than her medical marijuana use). Those with past drug addiction constituting a record of disability have potential ADA nondiscrimination and accommodation rights. Raytheon Co. v. Hernandez, 540 U.S. 44 (2003). But Some State Laws Prohibit Employment Discrimination Based on Current Marijuana Use Some state laws provide explicit employment protections, or have recently been interpreted to find an implied right against discrimination. Implications: These state laws would still allow employers to terminate employees who use, possess, or are under the influence in the workplace, but may bar discipline where that is not established.

Examples: New Vermont state law: protects against disability discrimination even based on current medical marijuana use, but excludes from protection those under the influence at work, those unable to perform essential functions, or those who pose a direct threat, http://ago.vermont.gov/wp-content/uploads/2018/06/Employer-MJ-Guidance-TOC.pdf Barbuto v. Advantage Sales Marketing, LLC, 477 Mass. 456, 78 N.E.3d 37 (2017). Noffsinger v. SSC Niantic Operating Co., 273 F. Supp. 3d 326 (D. Conn. 2017). Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. May 23, 2017). Different Rules for Opioids & Opioid Treatment Drugs: Qualified? General rule: ADA allows employer to exclude individual with disability from

position if individualized assessment shows even with accommodation he cannot perform the essential functions or poses a direct threat to health or safety. EEOC v. M.G. Oil d/b/a Happy Jacks Casino, 4:16-cv-04131-KES (D.S.D. consent decree entered May 2018) (settling claim that job offer to cashier was withdrawn in violation of ADA based on drug test showing lawful presence of prescribed medication, and that company had unlawful policy of requiring all employees to report prescription and nonprescription medications they are taking), https://www.eeoc.gov/eeoc/newsroom/release/5-18-18.cfm. Different Rules for Opioids & Opioid Treatment Drugs: Qualified? (cont.) EEOC v. Foothills Child Development Ctr., Inc., Civil Action No. 6:18-cv-012555-AMQKFM (D.S.C. consent decree entered May 2018) (settling claim that employee was terminated in violation of ADA after employer learned he takes Suboxone as part of supervised medication-assisted treatment program, with no individualized assessment

of whether he could safely perform essential functions), https://www.eeoc.gov/eeoc/newsroom/release/5-15-18.cfm. Pending: EEOC v. Steel Painters, LLC, Civil Action No. 1:18-cv-00303 (E.D. Tex. filed June 29, 2018) (EEOC alleges painting company unlawfully fired a worker who had previously been dependent on opioid medication but was taking a prescribed dose of methadone as treatment), https://www.eeoc.gov/eeoc/newsroom/release/6-29-18a.cfm.

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