ADA – Page 2 – Workforce

June 23, 2020June 29, 2023

Must you accommodate an employee with a high-risk family member?

One of the questions I have received most from clients during this pandemic comes in some variation of the following: “An employee [does not want to come into work/wants to work from home/wants a leave of absence] because s/he lives with someone who is at high risk for coronavirus complications. What do we do?”

In other words, must you accommodate an employee for the employee’s close family member’s disability?

According to the EEOC, the answer is, “No.”

Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

According to me, however, the answer is, “It depends” (on how you’ve historically treated similar requests by similarly situated employees).

The ADA not only protects employees with disabilities, but it also protects employees associated with individuals with disabilities. There is, however, one critical difference between these two types of protections. The former imposes on employers an obligation to offer reasonable accommodations, while the latter does not. This difference, however, does not mean that employers in all cases can deny accommodations to employees associated with individuals with disabilities.

If an employer has a history of accommodating employees similarly situated to an employee requesting an accommodation for an employee associated with someone at risk for coronavirus complications, the employer would be open to claim of disparate treatment by denying the employee’s accommodation request. Thus, an employer must scrutinize its decision to deny an accommodation request for an employee’s family member against similar requests by other similarly situated employees to avoid a claim of disparate treatment.

Of course, the ADA is a floor and not a ceiling. An employer is always free to accommodate any employee’s request for any reason. As the EEOC points out, “[A]n employer is free to provide such flexibilities if it chooses to do so.” Further, during the pandemic, the DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.”

Moreover, there are myriad business reasons why an employer might choose to grant an accommodation in this case.

It’s the ethically or morally correct thing to do.
It will help you to retain a quality employee.
Granting the accommodation will create goodwill, strengthening the employee’s loyalty to your company.
You will avoid the potential for bad press or negative social media if you deny the request, or worse, fire an employee seeking an accommodation under these circumstances.

For these reasons, I generally favor granting the accommodation. Unless there is a legitimate and overriding business reason to deny an accommodation request to an employee who, during the COVID-19 pandemic, seeks remote work or a leave of absence because he or she does not want to endanger a high-risk family member, grant the request. It’s the right thing to do, and, depending on the circumstances, it might also be the legal thing to do.

June 15, 2020June 29, 2023

COVID-19 is not an excuse for age discrimination

Consider these headlines:

While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.

Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.

Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.

The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.

May 4, 2020June 29, 2023

Labor compliance software sorts through complex legal issues

Labor compliance software is an innovative way to manage the overwhelming alphabet soup of laws, regulations and agencies that govern the workplace.

HR practitioners must recognize the regulatory distinctions of the FMLA and FLSA and navigate the nuances between the ADA and ADAAA. What are the latest regulations surrounding the ACA? Can a misstep with COBRA come back to bite them? And SOX … is that a professional baseball team or a law protecting corporate whistleblowers?

If assessing guidance from agencies including OSHA, DOL and EEOC wasn’t enough to cope with, labor compliance software is a must-have now as the coronavirus invades organizational policies. HR leaders and corporate counsel must quickly familiarize themselves and understand the implications of implementing workplace laws surrounding a new bowl of alphabet soup — PPP, FFCRA and the CARES Act.

The value of labor compliance software

Maintaining corporate compliance with government regulations isn’t easy. Besides knowing what agencies actually do and how regulations affect employers, labor laws are dense, complex and confusing. A single unintentional compliance misstep by an organization can lead to a costly and time-consuming lawsuit with the potential to disrupt or even bankrupt a small, growing organization.

Compliance solutions allow organizations to avoid a trip to court and more easily comprehend constantly changing federal, state and local legislation. Employers can disseminate policies to employees, provide guidelines for regulatory enforcement and manage confidential documents all while saving money by easing time-consuming, onerous reporting rules.

Workforce management systems typically assist with traditional compliance issues while a specialized compliance solution takes employers beyond the basics and provides expert guidance on critical regulations. It can be like having a team of legal experts at your fingertips with minimal expense.

Labor compliance software also allows businesses to communicate company and legislative policies to their employees.

Key areas for compliance software

Regulatory software helps an HR department remain in compliance across all organizational departments. According to peer-to-peer software review site G2, there are business functions and the germane laws that can be undertaken by labor compliance software:

Benefits — Affordable Care Act (ACA); Consolidated Omnibus Budget Reconciliation Act (COBRA); Health Insurance Portability and Accountability Act (HIPAA); Genetic Information Nondiscrimination Act (GINA); Fair Labor Standards Act (FLSA); Family and Medical Leave Act (FMLA).

COVID-19-related policies — Coronavirus Aid, Relief, and Economic Security Act (CARES Act); Families First Coronavirus Response Act (FFCRA) and Payment Protection Program (PPP).

Labor and employment relations — Labor union updates (AFL-CIO, AFGE, SEIU, etc.); Department of Labor (DOL); Equal Employment Opportunity Commission (EEOC); National Labor Relations Board (NLRB); Office of Federal Contract Compliance Programs (OFCCP).

Payroll — Fair Labor Standards Act (FLSA); Federal Insurance Contributions Act (FICA); Federal Unemployment Tax Act (FUTA); Sarbanes-Oxley Act (SOX).

Risk — Employee safety is a top priority for all organizations. Compliance software can manage and track guidance and enforcement by the Occupational Safety and Health Administration (OSHA).

Companies needing compliance software

No organization is immune from U.S., state and local labor laws. True, regulations often vary depending on factors including employee count. A four-person mom-and-pop shop does not face the same labor compliance regulations as a multinational company.

Yet it is crucial that company policies remain up to date and comply with changes in legislation. Despite the expense a lawsuit can present, many smaller organizations are hesitant to call on legal resources simply based on costs. Those concerns can be streamlined by compliance software.

Small companies have difficulty keeping up with changes in compliance because they lack the manpower, and HR departments are already stretched thin or responsibilities are divided among employees as collateral duty. There is no point person to track and update compliance regulations.

Compliance is particularly crucial to navigating the maze of workplace issues. Municipalities and some states have instituted fair workweek policies in the past two years with more on the horizon.

In the wake of the #MeToo movement, mandatory sexual harassment prevention training is compulsory in six states. Compliance training, employee handbooks and more can be structured and simplified with a compliance solution.

Small and midsize organizations in particular have difficulty keeping up with HR compliance regulations as new legislation is continually introduced. When the HR team is small (or even just one person), their bandwidth quickly becomes strained.

Sorting through the alphabet soup of labor regulations can be an eye-glazing exercise for employers. Labor compliance software helps them to spell out attractive cost-savings, easy-to-use solutions and avoid unintentional noncompliance.

April 29, 2020June 29, 2023

Ohio governor’s explanation why masks are only recommended falls woefully short

essential workers; workers' compensation, mask

I tuned in April 28 to Ohio Gov. DeWine’s briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short.

The governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement.

Masks are offensive to some, who don’t like the government telling them what to do.
Masks can be problematic for people with disabilities.

The answer to point No. 2 is as easy as three letters: A-D-A. The ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask or face covering causes an issue for someone with a disability, the solution is to offer that individual an accommodation.

Maybe you segregate the employee so he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than the state modifying a rule that puts everyone at a greater risk of infection.

Which brings me to point No. 1. The governor said, “I understand some people may find that offensive, the government telling you what to.” Yet, if I’m choosing between offending some people and safety, I’m choosing safety 10 times out of 10. As I pointed out yesterday, everyone wearing masks or facial coverings reduces the risk of transmissions and infection down to a virtual zero.

Models show that if 80 percent of people wear masks that are 60 percent effective, easily achievable with cloth, we can get to an effective R0 of less than one. That’s enough to halt the spread of the disease.

One of the things we absolutely must do to combat the spread of COVID-19 is to wear masks or other facial coverings when at work or in public. While there are studies that question the ability of masks to protect people from the virus, we are not wearing masks to protect ourselves from catching COVID-19.

We are wearing them to protect others from us spreading COVID-19 to them. Thus, if everyone covers their face in public, we will protect everyone by limiting the spread of this virus. It’s just that simple, not difficult to comprehend, and not an affront to personal liberty.

So here’s my bottom line. Anyone who refuses to wear a mask in public because it’s offensive is selfish, thoughtless and doesn’t give a damn about the well being of their fellow humans, period.

I’ll be continuing to wear my mask when around others in public. I sincerely hope that for the well being of all others, you will too.

April 21, 2020June 29, 2023

Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible.

One thing that would allow us to do this with confidence is widespread antibody testing, a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity and a reasonable degree of safety for an employee to return to work.

This testing, however, raises two critical questions.

1. Can employers legally require it?
2. Should employers rely on it as an indicia of safety?

Can an employer legally require antibody testing?

The “can” question is easy to answer. According to the EEOC, because coronavirus is a “direct threat,” employers have carte blanche to test employees, including antibody testing as a return-to-work condition.

The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.

Also read: What a business operating in the time of coronavirus cannot look like

A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an individual with a disability poses a direct threat despite reasonable accommodation, the nondiscrimination provisions of the ADA do not protect him or her, and disability-related inquiries and medical examinations are legal and permissible.

Per the EEOC, “As of March 2020, the COVID-19 pandemic meets the direct threat standard,” because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

Thus, because COVID-19 is a direct threat, employers absolutely can require antibody testing as a condition for an employee to return to work.

Should an employer rely on antibody testing as an indicia of safety?

The more difficult question is whether an employer “should” require it and rely on it.

On Sunday, The New York Times ran a cautionary article, taking major issue with the reliability of COVID-19 antibody tests, which yet do not even have FDA approval.

More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.

Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.…

Most of the tests offered are rapid tests that can be assessed in a doctor’s office — or, eventually, even at home — and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.

Rapid tests are by far the easiest to administer. But they are also the most unreliable — so much so that the World Health Organization recommends against their use.

These tests have a false-positive rate of 5 percent (or higher), a significant margin of error when you consider that in a community with a five percent infection rate you’d have as many false positive as actual positives.

Even labs that are marketing these antibody tests to employers are cautioning against their reliability.

This test hasn’t been reviewed by the FDA. Negative results don’t rule out SARS-CoV-2 infection, particularly in those who have been in contact with the virus. Follow-up testing with a molecular diagnostic lab should be considered to rule out infection in these individuals. Results from antibody testing shouldn’t be used as the sole basis to diagnose or exclude SARS-CoV-2 infection. Positive results may be due to past or present infection with non-SARS-CoV-2 coronavirus strains, such as coronavirus HKU1, NL63, OC43, or 229E.

In other words, these tests aren’t reliable because the FDA hasn’t reviewed them, and because of risk of a strand of coronavirus other than COVID-19 flagging a false-positive result.
What does all of this mean?

First, employers should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.

Secondly, for the time being, employers will have to rely on measures other than testing to keep employees safe.

Third and finally, the government needs to ramp up the approval of reliable testing. Without readily available quick and reliable tests we are shooting in the dark by bringing employees back to work, and we will continue to spread infections no matter how many other steps businesses take to attempt safely to return employees to work.

April 8, 2020June 29, 2023

If you require employees to wait in line for a coronavirus fever check, pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.”

To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

The ADA typically prohibits employers from taking employees’ temperatures as an unlawful medical examination. Because the WHO has classified coronavirus as a pandemic, however, just about all medical exam issues under the ADA are temporarily moot. According to the EEOC, among other coronavirus prevention measures, employers may measure employees’ temperatures. This issue, at least for now, is pretty cut and dry.

The FLSA issue is a little more nuanced. In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing “preliminary” (pre-shift) and “postliminary” (post-shift) activities that are “integral and indispensable” to an employee’s principal activities. What activities are “integral and indispensable?” Those that are (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In Busk, for example, the Court held that post-shift security screenings were not “integral and indispensable” for an Amazon warehouse employee, because such screenings are not “an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment,” and the employer “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

According to the Bloomberg Law article, employers could look to Busk to argue that pre-shift temperature checks, even if mandatory, are not “integral and indispensable” and therefore can be unpaid. (For what it’s worth, I think a just as good, or better, argument is that preliminary temperature checks to protect employees from a deadly virus are integral, indispensable, and compensable.)

Busk or no Busk, this isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment.

What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day, especially when the federal government is going to reimburse you through your Paycheck Protection Program loan. (You did apply for your loan, right?)

At the end of this pandemic, many businesses will no longer exist. If there’s such a thing as karma, one of the deciding factors in which ones survive will be how they treated their employees.

* * *

Don’t forget that I’ll live on Zoom tomorrow, April 9, from 11:30 am – 12:30, open paid sick leave and eFMLA issues, and taking your coronavirus questions. And Norah has said she will drop in and share another song. You can access the Zoominar here: https://zoom.us/j/983559955

January 22, 2020June 29, 2023

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of ‘fitness for duty’ exams

Joey Kramer, Aerosmith’s founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend’s honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend’s Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required the Aerosmith drummer to audition to prove he was “able to play at an appropriate level” before he could regain his drummer role. He further claims that this audition is unprecedented in the band’s 50-year history, during which each of other members had to step away for various reasons.

This story about the Aerosmith drummer got me thinking about an employer’s rights when an employee seeks to return to work after a medically related leave of absence. Two laws potentially apply — the Americans with Disabilities Act and the Family and Medical Leave Act.

According to the EEOC, under the ADA:

If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

The issue is more complicated if the FMLA covers the employee’s leave. According to the DOL’s FMLA regulations:

- As a precondition of restoring an employee out on FMLA leave for his or her own serious health condition, an employer can require the employee to obtain and present certification from the employee’s health care provider that the employee is able to resume work.

- The fitness-for-duty requirement must be made pursuant to a uniformly-applied policy or practice that requires it for all similarly-situated employees (i.e., same occupation, same serious health condition).

- An employer may only require a fitness-for-duty certification if it advised the employee of the requirement in the required FMLA designation notice at the outset of the leave.

- The requested fitness-for-duty certification is limited to the particular serious health condition that caused the need for the FMLA leave, must certify that the employee is able to return to work, and may also certify (if requested) that the employee is able to perform the essential functions of the job.

- Unlike medical certifications at the outset of an FMLA leave, fitness-for-duty certifications are a one-shot deal. No second or third certifications are permitted.

- Failure by an employee to submit a requested fitness-for-duty certification strips an employee of his or her job restoration rights (unless the employer failed to advise the employee of the requirement at the outset of the leave).
- The employer can require the employee to bear the cost of the fitness-for-duty certification.

Here’s where it can get really tricky. A failure by an employee’s medical provider to certify the employee as fit to return to work could trigger an employer’s obligation to engage in the ADA’s interactive process with the employee for a reasonable accommodation. If the employee’s medical provider, instead of returning the employee to work without restrictions, either asks for additional, finite unpaid time off or restrictions upon the return to work, the employer should engage with the employee to determine what accommodations are possible under the ADA. The failure to do so could result in an ADA violation.

These issues are tricky and fraught with legal risk. You should be contacting your employment counsel to help you navigate these issues when they arise.

December 16, 2019June 29, 2023

Court Finds That the ADA Does Not Protect Employee’s Dormant Genetic Condition

Sherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

While “normal cell growth” is a major life activity the ADA protects, the court could not find that the BRCA1 gene is a physical impairment that substantially limits normal cell growth.

Although mindful that the ADA is to be broadly construed, the Court concludes that Plaintiff fails to state a claim upon which relief can be granted. Plaintiff has offered no statutory, regulatory, or caselaw support for her “legal conclusion couched as a factual allegation” that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth. And the Court’s own research has found none.

It is true that the Sixth Circuit has held that some conditions, even when dormant, may constitute a physical impairment.… But this is not a circumstance akin to remission of cancer. Rather, it is, presently, the absence of cancer.

The Court’s decision should not be read to trivialize Plaintiff’s legitimate fear of developing breast cancer or minimize the transformative measures she took to avoid it. It merely recognizes that this Court’s role is to interpret, not legislate. To expand the definition of physical impairment to include a condition that might lead to a disability in the future effectively puts every employee under ADAAA protection.

Whatever issues I have issues with this decision (and I have some big ones) could have been cured by pleading this case differently. I question why Darby pleaded her protected disability as an actual disability instead of a regarded as disability. I think she would have a had a much better chance at surviving dismissal if she framed her claim as one in which her employer terminated her based in its perception of her having a disability (which does not require any proof of any actual disability) instead of any actual disability itself.

Moreover, in many cases its largely irrelevant whether the ADA covers a dormant genetic disorder because another statute already does—GINA, the Genetic Information Nondiscrimination Act. GINA prevents employers from using genetic information in employment decisions. GINA likely wouldn’t have helped Sherryl Darby, because it does not appear the issue of her having the BRCA1 gene arose until her lawsuit (and long after her termination).

This case will be often be cited for the proposition that the law does not protect an employee’s dormant genetic condition. While that is true based on how Darby pleaded her claims in this case, employers should not treat Darby as a license to discriminate, as doing so will likely violate both the ADA and GINA in many cases.

December 5, 2019June 29, 2023

Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.

In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.

Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.

In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.

Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.

What can we learn from this decision?

1. An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
2. Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
3. An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.

November 6, 2019June 29, 2023

Decision on Positive Drug Test Reveals the Future of Medical Pot and Drug Testing

Richard Turner worked as a crane operator for Phillips 66.

The company’s substance abuse policy allowed for random and post-accident drug testing for “Cannabinoids, Cocaine, Opiates, Phencyclidine (PCP) and Amphetamines,” and mandated termination for any positive test.

On April 24, 2017, Turner was selected for a random drug test and provided a urine sample. Three days later he was involved in a workplace accident and was again tested.

The following day, Phillips 66 learned that Turner’s April 24 sample tested positive for amphetamines. As a result, the company fired him.

According to a letter Turner later provided from his physician, Turner had not been prescribed amphetamines, but had taken over-the-counter medications, including Sudafed, for unspecified “medical conditions.” The April 27 sample, and the sample from a retest Turner himself took, both tested negative. The company’s retest of the April 24 sample, however, again tested positive for amphetamines.

In Turner’s subsequent disability discrimination case challenging his termination, the 10th Circuit Court of Appeals concluded that Phillips 66 did not violate the ADA via its drug testing.

Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Turner argued that Phillips 66’s drug screen violated this rule because it revealed the potential use of a legally prescribed medication. The 10th Circuit disagreed:

The EEOC has indicated a drug test does not become a medical examination simply because “the results reveal information about an individual’s medical condition beyond whether the individual is currently engaging in the illegal use of drugs,” such as “the presence of a controlled substance that has been lawfully prescribed for a particular medical condition, this information is to be treated as a confidential medical record.” A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.

Pay careful attention to that last sentence:

A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.

Assume for a second that Turner tested positive for legally prescribed medical marijuana instead of amphetamines. Would this result be any different? Marijuana remains federally illegal. If an employer drug tests for marijuana, according to Turner v. Phillips 66, a positive test does not become an unlawful medical exam in violation of ADA merely because it could cause the employee to reveal medical information to justify the positive test.

In other words, drug tests remain 100 percent legal, whether or not they cause an employee to reveal medical information in response to the drug screen.

A great result for employers as we continue to figure out the difficult intersection between the lawful use of impairing drugs and the ADA.