A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury verdict for the plaintiffs. The jury had found that the examination and inquiries were not “job-related and consistent with business necessity,” as required by the ADA.

Rejecting Dura’s arguments that the punitive damage award should be set aside, the court cited testimony that “the most likely explanation” for the policy was that the company “was attempting to ‘run off’ older employees with higher medical and prescription drug costs;” that the company refused  to consider individual circumstances or medical authorizations stating that the plaintiff could work safely while on the prescription medications; and that a plaintiff who failed the initial panel test was allowed to continue working on an important project but was terminated after failing a random test following completion of the project.

A test to determine the illegal use of drugs is not a medical examination under the ADA and inquiries concerning current use of illegal drugs are not unlawful inquiries. An employer who ventures beyond the “illegal use” parameter must establish that  its examinations and inquiries are “job related and consistent with business necessity.” An employer should ensure its drug testing protocol tests for illegal drugs only and that its drug testing vendor is following that protocol.                     

Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms.  In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights.  Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it.  Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.

When an employee complains of harassment, the employer response is to investigate and take appropriate remedial action. In Kagawa v. First Hawaiian Bank/Bancwest Corp., the employer responded accordingly and is now a defendant in an ADA “regarded as” claim.

The plaintiff, a Senior Credit Analyst, alleged that she is a mystic, hears God’s voice directly, and had a dream in which God told her that another bank employee had romantic feelings for her. She alleged that after she told that employee about her dream, her supervisors told her that the employee felt harassed by her comments. The company told the mystic not to have any contact with the other employee, directed her to read the company’s sexual harassment policies and ordered her to seek counseling “under threat of termination.” The company placed her on administrative leave.

The plaintiff attended a counseling session and alleged that the counselor told her to see a doctor, which she refused to do because she was not willing to pay for the appointment. The bank terminated her employment.

The plaintiff’s lawsuit includes numerous discrimination claims. The employer moved to dismiss the ADA claim. Calling it a “close case,” the Court denied the motion, noting that: the bank ordered her to go to counseling or be fired; the manager’s statement on the counseling report that she ““hears a voice” and would do whatever the voice told her to do.” could be misleading since the mystic claimed she hears God’s voice, and “not just any voice” like “some insane person”; and the counselor told her to see a doctor, which the court understood to mean a psychiatrist of psychologist. Taken together, the court said, the plaintiff has plausibly alleged that the bank regarded her as having some kind of mental illness.

The Court’s denial does not mean the plaintiff has won; the case moves to the next stage of litigation. However, the denial is a reminder that whenever an employer talks to an employee about counseling, whether it be a voluntary or mandatory referral, whether it be with an altruistic motive or as part of disciplinary action, the possibility of an ADA “regarded as” case looms. As this case illustrates, that risk exists even when the counseling is part of the “appropriate remedial action” taken in response to a complaint of harassment.

Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation.  The Court cited its observation in an earlier decision that “there is nothing inherently unreasonable…in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” Nixon-Tinkelman v. NYC Dep’t of Health and Mental Hygiene (Aug. 10, 2011).

At least four other circuit courts have taken the opposite view and held that the commute is not part of the work environment that an employer is required to reasonably accommodate.  The EEOC also said in a 2001 informal discussion letter that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form reasonable accommodation. 

The Second Circuit remanded the case and directed the district court to consider whether defendants could have reasonably accommodated plaintiff’s needs by transferring her back to her prior worksite or another closer location, allowing her to work from home, or providing a car or parking permit. The Court provided a non-exclusive list of factors for the district court to evaluate in making this determination. They included the number of employees employed by the defendant, the number and location of its offices, whether other available positions existed for which plaintiff showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening the defendant’s operations, and the reasonableness of allowing her to work without on-site supervision.

Employers within the Second Circuit and in other Circuits which have not addressed the issue should be cautious when presented with a request for commuting assistance. While this conflict in the circuits may wend its way to the United States Supreme Court, that may take years and until then, the law of the circuit in which the case is pending applies.

Connecticut has become the only state to require employers to provide paid sick leave to  employees. On July 1, 2011, Governor Dannel Malloy signed into law Public Act No. 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees.   

Beginning January 1, 2012, a covered employer must provide paid sick leave annually to each of its service workers in Connecticut at a rate of one hour of paid sick leave for each 40 hours worked, accrued in one-hour increments, to a maximum of 40 hours per calendar year. For service workers hired after January 1, 2012, the accrual begins on the service worker’s date of employment. The law also bars covered employers from retaliating against any employee for taking sick leave under this law or under the employer’s own paid sick leave policy.

We have analyzed the law through a series of Questions and Answers. The law leaves many questions unanswered. They include the integration of this law with the ADA, the FMLA, the Connecticut FMLA, and Connecticut law prohibiting disability discrimination.

Recall our recent posts about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” her, and about an employee who took two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar. The court rejected both FMLA “caring for” claims because the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions.

Add to the list of rejected FMLA “caring for” claims that of a plaintiff whose daughter was injured while on a family vacation in Honduras and was airlifted to Miami for surgery. The employee was granted FMLA from March 20 through May 5 to care for his daughter. On April 12, the employee returned home to Texas while his wife remained in Miami with the daughter.  The plaintiff said he returned home because his neighborhood association had complained about his untended yard, his house needed to be cleaned, and he needed to add padding to the sharp edges in the home to protect his daughter upon her return. He said he was in frequent telephone contact with his wife and daughter until their return to Texas on April 29. Between April 12 and May 5, the plaintiff neither reported to work nor told his employer that he had returned to Texas.

The Fifth Circuit affirmed summary judgment for the employer, holding that FMLA leave may be used “only where the employee is in physical proximity to the cared-for person,”  and that the plaintiff did not remain “in close and continuing proximity” with his daughter during his FMLA leave. Baham v. McLane Foodservice, Inc. 

In rejecting the plaintiff’s claim, the Court held that the plaintiff was not with his daughter between April 12 and April 29; that mowing the lawn, cleaning his house, and padding the furniture is not “caring” under the FMLA; and that frequent telephone contact does not meet the “caring for” requirement.

“Who cares” and who does not is going to be decided on a case by case basis. However, a growing number of cases suggest that “being there,” physically with the family member needing care, is a requirement for FMLA leave.

 A federal district court has upheld an employer’s restrictions on employee travel while on medical leave, affirming that employers can take reasonable steps to ensure that leave is used for its intended purpose. Pellegrino v. Communications Workers of America, Civ. No. 10-0098 (W.D. PA. May 18, 2011).

The Communications Workers of America provided its employees a wage replacement program which ran concurrently with FMLA leave. When receiving wage replacement, employees had to  remain in the “immediate vicinity of their homes” except to receive medical treatment or to attend “ordinary and necessary activities directly related to personal or family needs,” according to the court. An employee wanting to leave the immediate vicinity of her home needed the CWA’s written permission to travel.

Two weeks into her FMLA leave for surgery, plaintiff went to Cancun, Mexico for a week.   She had not sought permission to travel or request vacation for the trip. The CWA terminateded her for traveling to Cancun while on FMLA and disability leave in violation of CWA’s leave policies and work rules.

Plaintiff sued the CWA, claiming that it interfered with her right to FMLA by terminating her employment. After the lawsuit had begun, plaintiff’s physician submitted a letter stating that plaintiff was not able to return to work until weeks after she had returned from Cancun and that her trip to Cancun “was not inconsistent with her recovery or with any medical restrictions placed on her during that time,” according to the court.

The court upheld the wage replacement restrictions and granted the CWA summary judgment. Citing Third Circuit precedent, the court held that “there is no right in the FMLA to be left alone. Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave…” 

This is the latest of a handful of cases upholding the right of employers to impose restrictions to make sure medical leave, including FMLA, is not abused. Employers seeking to actively manage FMLA to prevent abuse should consider the lessons from these cases.

 Wisconsin has become the first state to pass a law preempting local laws providing family and medical leave. Governor Scott Walker said the state needs to avoid a “patchwork” of different leave requirements in different parts of the state. Noting that “the provision of family and medical leave is a matter of statewide concern,” the law states that the enactment of any law providing such leave, whether paid or unpaid, by a city, village, town, or county would be “logically inconsistent with, would defeat the purpose of, and would go against the spirit of” that statewide concern. The statute voids Milwaukee’s Paid Sick Leave Ordinance, which allowed full time employees to accrue up to nine paid sick days per year.

The Wisconsin Family and Medical Leave Act provides eligible employees up to six weeks of leave on the birth or adoption of a child, two weeks to care for a parent, child or spouse with a serious health condition and two weeks for the employee’s serious health condition. While the leave is unpaid, an employee may elect to substitute any accrued paid leave.

Only San Francisco and Washington, D.C. require employers to provide paid sick days, although Denver, Seattle and Philadelphia are considering similar bills. A Connecticut bill requiring paid sick leave has passed the legislative Appropriations Committee and is awaiting action in the Senate.

An Ohio manufacturer has paid $120,000 to settle sex and disability claims with allegations of unlawful discrimination relating to an individual’s caregiver responsibilities. According to the EEOC’s press release, the EEOC had alleged in its 2010 lawsuit that The Timken Company had denied a part time employee a full time position because she was the mother of a disabled child and that one or more managers believed that the woman would be unable to work full time and care for her child.

The EEOC had alleged that the company had hired men with disabled children as full time employees and had discriminated against the part time employee due to her association with her disabled child.

In 2007, the EEOC had issued enforcement guidance on the “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The EEOC stated then that the guidance was “not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The allegations underlying the EEOC’s allegations against The Timken Company seem to track its guidance fairly closely.

The two year consent decree also required the company to provide anti-discrimination training to its managers, supervisors and employees at the facility where the incident occurred, post a notice and provide periodic reports to the EEOC on its hiring practices.

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.