Former Drug User May Be Current Drug User Under the ADA

Posted on April 26, 2011 by Michael Soltis

It seems anomalous for an individual to be both a former and current user of illegal drugs at the same time. But perhaps not so anomalous under the ADA, according to the Tenth Circuit’s recent decision in Mauerhan v. Wagner Corporation.

The ADA exempts from its protection those who are current users of illegal drugs, but protects those who have successfully completed a drug rehabilitation program and are no longer engaging in the illegal use of drugs. When an individual leaves a drug rehabilitation facility after completing a rehabilitation program, is the individual a current or former user of illegal drugs? The court held that there is no “bright line” to distinguish a current from a former user. The court held that an employee who had not used drugs during his one month inpatient rehabilitation program was nonetheless a current drug user under the ADA when he applied for his former position the day after completing the program. Contrary to what the terms may suggest, the distinction between current and former user “is not based solely on the number of days or weeks that have passed since an individual last illegally used drugs,” the court said. Rather, the test is based on the employer’s perspective: someone no longer using drugs may nonetheless be “currently engaging in illegal use of drugs” under the ADA if the use “was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”

As Humpty Dumpty told Alice in Through the Looking Glass: “When I use a word…it means just what I choose it to mean – neither more nor less.” And under the ADA, when it comes to users of illegal drugs, former may mean current.   

Tags: , , ,

Huge Win for Employer Wellness Plans!!

Posted on April 12, 2011 by Frank Alvarez

Employers who use financial incentives to motivate employees to complete health risk appraisals as part of their group health plans can breathe a little easier.  Relying on the ADA's "safe harbor" for insurance practices, a Florida federal district court has rejected a class action lawsuit challenging Broward County's use of a $20 surcharge to motivate completion of a health risk appraisal. 

As we previously reported, this case is extremely important for many employers.  Health risk appraisals often are the cornerstones of wellness programs and financial incentives are critically important tools to drive employee participation and, in turn, outcomes.

Because the Court found that the employer's actions were protected by the ADA's safe harbor provisions, it did not decide the employer's alternative argument that the wellness program was a voluntary wellness program under the ADA. 

Tags: ,

Lights Out on Broadway; Court Extinguishes FMLA Retaliation Claim

Posted on April 7, 2011 by Michael Soltis

Michael Broadway’s employer gave him 18 disciplinary warnings for absenteeism during a 3 ½ year period.  According to the court in Broadway v. Sypris Technologies, Inc., the company either terminated or threatened to terminate Broadway three times, only to relent when Broadway produced doctor’s notes for his absences. 

At about the time the company rescinded Broadway’s last termination, the company laid off a number of employees, including Broadway.  A few weeks later, the company sought to recall him by leaving him a message and sending him a certified letter, which he did not pick up at the post office. When the company did not hear from Broadway, it terminated his employment.   

Broadway claimed that his termination was in retaliation for taking FMLA leave, among other reasons. He pointed to his employer’s requiring him to produce medical documentation as a condition of not terminating him on one occasion, and by assessing an attendance point for an FMLA-covered absence. The court rejected Broadway’s FMLA claim, noting that he offered no evidence to cast doubt on his employer’s legitimate business reason for termination, i.e., Broadway’s failure to return from layoff.

This straightforward case demonstrates some basic FMLA principles in action. The first is that an employer may terminate an employee who has taken FMLA for legitimate business reasons unrelated to the FMLA leave. Second, an employee who has taken FMLA leave and is terminated for unrelated reasons is likely to be able to plead a retaliation complaint. Third, merely pleading that complaint is enough to get an employer to court, but not enough to prevail; a plaintiff must establish a “causal connection” between taking FMLA leave and the termination, which Broadway was unable to do.  When assessing the risk of terminating an employee who has taken FMLA leave recently, an employer should review these three principles from Broadway.

Tags: