Drug & Alcohol Abuse: Legal Updates Employers Need to Know

Drug & Alcohol Abuse: Legal Updates Employers Need to Know

Agenda FMLA & ADA Overview ADA Recent Cases Recent Cases with FMLA and ADA Elements

FMLA & ADA Family Medical Leave Act ( FMLA ) For employee s own serious health condition Can be intermittent when medically necessary Americans with Disabilities Act ( ADA ) For qualified individual with disability May require interactive process to identify reasonable accommodation (which could include leave of absence)

Differing Qualifying Employees and Employers ADA Employers with 15 or more employees No employee hour requirements, tenure requirements, or worksite location conditions FMLA Employers with 50 or more employees within 75 miles Employee hour requirements, tenure requirements, or worksite location conditions

Drug & Alcohol Addiction and Abuse: ADA Current or recreational drug use is not a disability Misuse of prescription drug can turn into illegal drug abuse Drug/alcohol abuse may be considered a disability IF safe harbors are met: Completed rehab and no longer using; or In supervised rehab and no longer using; or Erroneously regarded as using illegal drugs

Drug & Alcohol Addiction and Abuse: FMLA FMLA applies to an illness, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider

What is Currently Engaging under the ADA? Facts: Firefighter terminated after a positive drug test can pursue claims that the true reason for his termination was depression Eleventh Circuit has not addressed what is current but the Fifth, Sixth, Seventh & Tenth Circuits: The proper test is whether the drug use was sufficiently recent to justify the employer s reasonable belief that the drug use remained an ongoing problem Here, the firefighter claimed he has sought medical care and has not used for a significant amount of time The M.D. of Florida did not dismiss his discrimination claim

What is Currently Engaging under the ADA? Facts: High school secretary signed students discipline forms without approval to do so Soon after, she checked herself into a hospital and was diagnosed with opiate dependency. Five days later, she returned to work, where she resigned and claimed constructive discharge on the basis of disability Texas Fourteenth Court of Appeals held that five days of abstention from drugs was not a sufficient amount of time to fall within the safe harbor Not a sufficient amount of time to remove from the employer s mind a reasonable belief that drug use remains a problem

Who is Qualified Under the ADA? Facts: School employee who came to work intoxicated and with alcohol was not a qualified individual with a disability because he broke several school board policies N.D. of Illinois held in 2014: A violation of workplace policies will render an individual no longer qualified for his or her position

Who is Qualified Under the ADA? Facts: Truck driver diagnosed with alcoholism sought & received treatment for same When he attempted to return to work, employer decided he no longer met DOT and company regulations that state that no individual with a diagnosis of alcoholism is qualified to drive a commercial motor vehicle Because the employer has the burden under the DOT rules to comply with the regulation, the Eleventh Circuit upheld the employer s decision to determine that the driver did have the diagnosis and terminate him

Other Recent ADA Cases Facts: Employee fired for lying on job application when it was later revealed he had a history of drug abuse Third Circuit held in 2013: Employee met ADA safe harbor, so protected as disabled But, appropriate to fire the employee for lying, so no ADA violation Facts: Employee suspended/demoted for being intoxicated at work, and claimed failure to accommodate/discrimination because of employerimposed conditions (drinking ban and random testing). Second Circuit held in 2013: Not ADA violation because it is permissible for employer to impose conditions on known substance abusers

Would the EEOC Agree? August 28, 2014 Opinion Letter Critical of company policy that would require alcoholic employees to abstain from alcohol both on and off the job

ADA & FMLA Claims Intersect Facts: Employee fired for violation of drug free workplace policy when he failed to complete rehab for drug abuse Fifth Circuit held in 2013: Employee did not qualify as disabled under ADA safe harbors Employee s FMLA return to work rights not violated Employee only entitled to reinstatement after FMLA leave if he is still entitled to the job to which he seeks reinstatement

ADA & FMLA Claims Intersect Facts: After rehab, employee signed a RTW agreement to attend AA meetings and at-will drug/alcohol screening; fired when failed to take an alcohol test at employer s request Houston Federal District Court determined in 2012: Triable issues on employee s FMLA interference claim because employee was not allowed to attend AA meetings during the workday & FMLA was not discussed when left for rehab

ADA & FMLA Claims Intersect Facts: After completing rehab for alcoholism, employee signed a RTW agreement requiring him to remain alcohol-free at all times while employed. Within a month, he relapsed, went back to rehab and was fired for violating his RTW. The Third Circuit held in 2013: ADA: Employers don t violate the ADA merely by entering into RTW agreements that impose different conditions than on other employees FMLA: Employee admitted he was fired for violation of RTW, not because he requested leave to return to rehab, so no FMLA issue

Case Recap: Under the ADA and FMLA Merely entering rehab does not trigger ADA safe harbor provisions Whether someone is currently engaging varies by case FMLA does not guarantee reinstatement when an employer has a legitimate reason for termination Only entitled to reinstatement if still entitled to the position

Thank You! Celina Joachim Legal Counsel, Litigation & Labor/Employment, Direct Energy celina.joachim@directenergy.com Lindsay Wright Baker & McKenzie LLP lindsay.wright@bakermckenzie.com