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In an era where employers are having to plan for changes in workplace drug testing compliance, primarily due to evolving marijuana laws and our nations opioid crisis, another compliance beast continues to rear confuse employers: Disability Discrimination.
Disability discrimination laws and lawsuits are not new to the employment world; in fact, there have been rules about employment discrimination dating back to the Americans with Disabilities Act (ADA)[1] which became law in 1990. Employers are prohibited from discriminating against employees with disabilities. Both federal and state laws provide this protection. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities, including perceived disabilities and records of disabilities, in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.
Title I (Employment)[2] of the ADA is designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities. Employers must provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions.
Employers with 15 or more employees must comply with this law. The regulations for Title I define disability, establish guidelines for the reasonable accommodation process, address medical examinations and inquiries, and define “direct threat” when there is a significant risk of substantial harm to the health or safety of the individual employee with a disability or others.
The Equal Employment Opportunity Commission (EEOC)[3], a Federal government agency, enforces the sections of the ADA that prohibit employment discrimination.
When it comes to employers conducting drug testing for prescription drugs, and now an issue that continues to evolve around state medical marijuana laws, employers must take caution of the wide range of rules and procedures required of them before taking any adverse employment action. For those employers that do not; the consequences can be very costly. Here are a few examples that employers can learn from:
SoftPro, LLC, a Delaware software company headquartered in Raleigh, N.C., will pay $80,000 and provide other relief to settle a disability discrimination lawsuit[4] brought by the U.S. Equal Employment Opportunity Commission (EEOC).
According to the EEOC’s lawsuit, Matthew Elliott worked for SoftPro in an IT position at the company’s Raleigh headquarters. Elliott, an individual with a record of opiate addiction, participated in physician-supervised medication-assisted treatment (MAT) for the addiction since 2009. In February 2017, Elliott took leave from SoftPro and voluntarily admitted himself to an inpatient treatment facility to eliminate the need for MAT. Elliott completed the inpatient treatment and returned to work. Upon his return to work, Elliott was questioned by SoftPro about the purpose of his leave. Elliott disclosed his recent participation in a treatment program to eliminate his need for ongoing MAT. SoftPro fired Elliott on Feb. 27, 2017 because it perceived him as disabled, the EEOC said.
In addition to the $80,000 in damages, the three-year consent decree settling the lawsuit requires that SoftPro revise, implement and distribute personnel policies to state that the company does not exclude employees based on their participation in a medication-assisted treatment program. The company must also provide annual training to its human resources team, managers, supervisors, and employees; post a notice to employees relating to the settlement; and report to the EEOC all negative employment actions the company takes against employees who have a record of substance abuse disorder or who are currently participating in, or have completed, a drug rehabilitation program.
In Barbuto v. Advantage Sales and Marketing, LLC[5], the plaintiff, Christina Barbuto was offered a position with Advantage Sales and Marketing, LLC and, after accepting the offer, submitted to company’s mandatory drug test. Before the drug test, the plaintiff advised the company that she would test positive for marijuana, explaining that she suffered from Crohn’s Disease which she managed with medical marijuana as an authorized participant in the Massachusetts medical marijuana program.
Adversely, the plaintiff’s employment was terminated based on a positive drug test for marijuana. A lawsuit followed, and the court focused on a provision in the Massachusetts medical marijuana law that provides “any person meeting the requirements under this law shall not be penalized in any manner or denied any right or privilege” because of their medical marijuana use. The plaintiff subsequently commenced an action for, among other things, handicap discrimination under Massachusetts law.
As part of the ruling, the court held that the company owed the plaintiff an obligation to engage in an interactive dialogue concerning her ongoing medicinal marijuana use before terminating her employment.
The state of New York’s Compassionate Care Act (CCA)[6] authorizes the medical use of marijuana. The law includes anti-discrimination language very similar to the Massachusetts language. Notably, the CCA provides, in part, that certified patients “shall not be . . . denied any right or privilege” based on their legal marijuana use and that “being a certified patient shall be deemed as having a disability” under the state human rights law, and anti-discrimination laws prohibit employers from discriminating against disabled persons.
These are just a couple of examples of cases evolving from medical marijuana and legitimate prescription drug use. Employers strongly encouraged to understand the language and details of the laws in each state they operate in and be prepared to engage in an interactive process to determine if a reasonable accommodation can be made, before taking adverse employment action.
[1] https://www.ada.gov/
[2] https://www.eeoc.gov/eeoc/publications/fs-ada.cfm
[3] https://www.eeoc.gov/
[4] https://www.jdsupra.com/legalnews/softpro-to-pay-80-000-to-settle-eeoc-21575/
[5] https://law.justia.com/cases/massachusetts/supreme-court/2017/sjc-12226.html
[6] N.Y. Pub. Health Law § 3360, et seq.
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