Author: James Denis

Douglas Quinney worked as an account manager for Swire Coca-Cola USA in Draper, Utah. Driving was an essential function of Quinney’s duties as an account manager. During his employment, Quinney suffered back pain and he took several prescription medications, including Lorcet, Oxycontin, Soma and Duagesic patches to relieve his pain. In December 2001, after hearing from one of Quinney’s co-workers that Quinney was overusing his pain medication, Swire asked Quinney to take a drug test in accordance with its drug and alcohol policy. Because Quinney tested positive for hydrocodone, Swire’s medical review officer concluded that Quinney should not operate a company vehicle while taking pain medication. Quinney was placed on paid leave. He was told to stop using narcotic pain relievers or he could not return to work as an account manager. Quinney was given short-term disability.

In June 2002, Quinney filed a discrimination charge against Swire, alleging that all the drugs for which he tested positive were prescribed by his doctor and that he could not stop taking them. In July and August 2002, Swire met with Quinney four times to offer him jobs that did not involve driving and for which he was qualified. Quinney did not accept any of these four jobs and quit.

Quinney filed suit in US District Court in Utah, alleging that Swire violated the Americans with Disabilities Act because it failed to accommodate his disability. Granting summary judgment and dismissing his claims, the district court found that driving was an essential function of his job, and that Swire did not have to continue to employ Quinney. The court found it “entirely proper for Swire to rely on the opinions of its medical professionals” in determining that Quinney could not drive safely. Quinney v. Swire Coca-Cola USA, D. Utah, No. 2:07-cv-788 (05/18/09).

Impact: Employers are advised to engage in an interactive process with employees seeking job accommodation. The ADA does not require employers to accommodate employees by assigning other employees to take over the duties of a disabled employee.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

In summer 2003, Melondy Bacon, a janitor at the Hennepin County Medical Center, began to break out in hives while at work. After suffering an outbreak of hives in July 2004, Bacon obtained a doctor note stating that she had a serious health condition and that she would need to take intermittent leave each time she had an outbreak. Bacon submitted the requisite Family and Medical Leave Act forms to her supervisor.

Following the July 2004 outbreak, Bacon called in to work, reporting that she would be absent. The hospital’s employee handbook requires employees who are on indefinite sick leave to call in absences every workday. The policy states that employees need not call in every day if the expected length of the absence is documented. Starting August 5, Bacon stopped calling in her absences, and on August 11 the hospital sent her a letter notifying her that it deemed her to have resigned.

In June 2006, Bacon sued the hospital in the U.S. District Court for the District of Minnesota, claiming she had been fired in violation of the FMLA. The court found in favor of the hospital, finding that it was entitled to fire her for violating its call-in policy. Bacon appealed.

Affirming the court’s decision, the Minneapolis-based U.S. Court of Appeals for the 8th Circuit agreed that the hospital’s call-in policy was permissible under applicable regulations; that Bacon signed an acknowledgment that the hospital’s policies apply to employees absences; and that although Bacon’s discharge interfered with her FMLA rights, Bacon was terminated to for failing to comply with the call-in policy, and that she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1168, (12/22/08).

Impact: Employers should be cautious when considering applying leave-of-absence procedures and policies to employees approved for FMLA leave.

In summer 2003, Melondy Bacon, a janitor at the Hennepin County Medical Center, began to break out in hives while at work. After suffering an outbreak of hives in July 2004, Bacon obtained a doctor note stating that she had a serious health condition and that she would need to take intermittent leave each time she had an outbreak. Bacon submitted the requisite Family and Medical Leave Act forms to her supervisor.

Following the July 2004 outbreak, Bacon called in to work, reporting that she would be absent. The hospital’s employee handbook requires employees who are on indefinite sick leave to call in absences every workday. The policy states that employees need not call in every day if the expected length of the absence is documented. Starting August 5, Bacon stopped calling in her absences, and on August 11 the hospital sent her a letter notifying her that it deemed her to have resigned.

In June 2006, Bacon sued the hospital in the U.S. District Court for the District of Minnesota, claiming she had been fired in violation of the FMLA. The court found in favor of the hospital, finding that it was entitled to fire her for violating its call-in policy. Bacon appealed.

Affirming the court’s decision, the Minneapolis-based U.S. Court of Appeals for the 8th Circuit agreed that the hospital’s call-in policy was permissible under applicable regulations; that Bacon signed an acknowledgment that the hospital’s policies apply to employees absences; and that although Bacon’s discharge interfered with her FMLA rights, Bacon was terminated to for failing to comply with the call-in policy, and that she would have been terminated for doing so irrespective of whether these absences were related to FMLA leave. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1168, (12/22/08).

Impact: Employers should be cautious when considering applying leave-of-absence procedures and policies to employees approved for FMLA leave.