ADA and Batman—by Robin

March 27, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.  Alcohol in the workplace

Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.”  Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.

An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.

Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.

While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.

Workaholics: Drug testing

April 06, 2015 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

The Comedy Central show Workaholics is currently in its fifth season of depicting a fresh (and hilarious) human resources nightmare week after week. The show is about three recent college dropouts (Blake, Adam, and Anders) who also happen to be roommates and coworkers at a fictional telemarketing company, TelAmeriCorp. To give you an idea of just how mischievous these three can be, their drug dealer/turtle feeder is also a regular fixture on the show. iStock_000003274349_Large

Fittingly, the pilot episode deals with the trio attempting to pass a company-wide drug test after a day of partying. Their shenanigans include, for example, bribing a middle school boy with fireworks and ninja stars in exchange for clean urine. When this plan goes awry (I won’t give away the messy details), the group decides to accept their  fate and take the drug test. Blake, however, finds inspiration from the film Die Hard and decides to contaminate ALL the employees’ samples before escaping just in the nick of time. Shocked to find that all TelAmeriCorp employees failed the drug test, Alice Murphy (senior sales associate and boss to our oddly endearing–though often disgusting and misguided–trio) relieves the drug tester of his duties. Blake, Adam, and Anders celebrate only to learn that the company has planned a hair follicle test.

Hopefully, you don’t know anyone who has taken a page from the Workaholics playbook for handling a company drug test. As employers are well aware, illicit drug and alcohol abuse can be costly in the workplace, and drug-free workplace programs can be powerful tools for spreading prevention messages and intervening early with those who have begun to use drugs. In my Christmas-themed Elf post, I discussed some general recommendations for such programs. In addition, there are many important legal considerations for employers, including the following examples.

  • Defamation. Revealing drug testing results, or simply revealing the basis for a suspicion of drug use, could be grounds for a defamation claim. Policies should minimize this risk by strictly limiting access to drug test information on a “need to know” basis, limiting statements to objective fact, obtaining a release, requiring follow-up confirmation testing, safeguarding the specimen (especially from Die Hard fans like Blake), using a reliable lab, and using split samples so employees can have a sample tested at their own expense.
  • Disability Discrimination. Although the Americans with Disabilities Act (ADA) does not protect current illegal drug users, both alcoholism and drug addiction are protected disabilities.  Employee misconduct caused by addiction is not protected by the ADA, however.
  • Adverse Impact.  If an employer’s policy or practice, such as disciplining or terminating all employees testing positive for drugs, adversely affects the employment opportunities of a class of employees protected by statute (such as minorities), the policy or practice may be challenged as discriminatory.
  • Employee Privacy.  There is no federally created right of privacy for private-sector employees. The federal prohibitions against illegal searches and seizures apply only to governmental action. Many state constitutions or statutes, however, contain a right of privacy that may limit certain drug testing methods or the circumstances under which an employee may be subject to drug testing. Employers should check the laws of the states in which they have employees before implementing a drug testing policy.

Unfortunately for our Workaholics, many state laws make it unlawful for any person to attempt to defraud any lawfully administered test designed to detect the presence of chemical substances or controlled substances. For the time being, our trio has escaped to bring us more cringe-worthy office moments, laughs, and potential blog material. So tell me your favorite episode and why it should appear in an upcoming blog post.

Elf: one too many Christmas spirits

December 19, 2014 - by: Kristin Starnes Gray 1 COMMENTS
Kristin Starnes Gray

With Christmas just around the corner, my family and I have begun our yearly ritual of re-watching our favorite holiday films. At the top of the list is a relatively newer addition, Elf.  The comedy stars Will Ferrell as Buddy, a human who crawls into Santa’s sack and ends up being raised by Papa Elf at the North Pole. After learning that he is actually human rather than an elf, Buddy decides to travel to New York to find his biological father, who works at a children’s book company and happens to be on the Naughty List. Much of the film’s comedy and charm comes from Buddy’s child-like innocence and genuine holiday cheer as he tries to navigate the cynical world of New York City. shutterstock_236981068At his father’s office, this same innocence leads Buddy to mistake a mail room worker’s whiskey for delicious maple syrup. As you can imagine, a six-foot tall elf can cause quite a ruckus in the workplace after having too many spirits.

Employers are well aware that illicit drug use and alcohol abuse can be costly in the workplace. Drug-free workplace programs can be powerful tools in spreading prevention messages and intervening early with those who have already begun to use drugs. For many individuals, especially those who may deny that their use of drugs is problematic, workplace-based programs can be a critical step along the road to treatment and recovery. Every workplace is different, and drug-free workplace programs should be tailored to match a company’s individual needs. Here are some general recommendations for such programs:

  • Have a written drug-free workplace policy explaining why the policy was enacted and providing a clear description of prohibited behaviors as well as an explanation of the consequences for violating the policy.
  • Train supervisors to understand the policy and recognize employees with performance issues that may be related to substance abuse.  Training also should explain how to refer employees for professional help.
  • Implement employee education programs providing information on the policy, how to comply with the policy, the consequences for violations, and general information about the dangers of substance abuse.
  • Have an employee assistance program to help prevent, identify, and resolve issues relating to substance abuse.
  • Implement drug testing to deter and detect drug use and to provide concrete evidence for intervention.

Luckily for Buddy, he manages to escape his inadvertent workplace drunkenness relatively unscathed and is free to return to his true vice–sugar, sugar, and more sugar. Feel free to share your holiday traditions, cautionary tales of workplace spirits, and also your thoughts on the new animated Elf special starring another one of my favorites, the talented Jim Parsons. Merry Christmas and happy holidays to our readers.


Say it ain’t so, A-Rod?

January 20, 2014 - by: David Kim 0 COMMENTS
David Kim

Back in August 2013, I wrote about the Biogenesis scandal that resulted in the suspension of 13 major and minor league baseball players, including a 211-game suspension for Alex Rodriguez. Well, thanks to A-Rod, this story has become the gift that keeps on giving.gummy bears

On January 11, 2014, Arbitrator Frederic R. Horowitz issued his decision with respect to A-Rod’s grievance challenging his suspension. While the Arbitrator reduced A-Rod’s suspension to 162 games, plus the postseason (the entirety of the 2014 season), the decision largely cuts against A-Rod and is viewed as a big win for MLB. While the decision itself would have remained confidential under the terms of the collective bargaining agreement between MLB and the MLB Players Association, it is now a matter of public record as a result of A-Rod’s latest Hail Mary, a federal lawsuit seeking to throw out the arbitrator’s award.

The arbitrator’s 34-page decision goes into fairly specific detail regarding A-Rod’s regimen of performance-enhancing substances, hundreds of text messages between A-Rod and Anthony Bosch (including fun code names such as “Gummies,” “Pink Food,” “Liquid Soup,” and a host of others) and some powerful language regarding why a suspension for the entire 2014 season and postseason was deemed warranted based on the supporting evidence. Specifically, the arbitrator’s decision states that “It is recognized this represents the longest disciplinary suspension imposed on a MLB player to date. Yet Rodriguez committed the most egregious violations of the JDA reported to date, and engaged in at least two documented attempts to cover up that behavior in violation of the Basic Agreement.” In addition, “[w]hile this length of suspension may be unprecedented for a MLB player, so is the misconduct he committed.” Powerful stuff.

ESPN’s legal analyst Lester Munson is on record as claiming A-Rod has “zero chance of ultimate success” in seeking to overturn the arbitrator’s decision with his latest lawsuit. While “zero” may seem like hyperbole, A-Rod faces an extremely uphill battle. Courts are reluctant to overturn an arbitrator’s decision, as the rationale for arbitration is to serve as an alternative to the expense and delay inherent in litigation. Consequently, the burden for vacating an arbitration award is extremely high, requiring A-Rod to demonstrate the arbitrator exhibited “manifest disregard for the law” or was not impartial and therefore was biased against A-Rod.

So what is A-Rod thinking with this lawsuit? He’s probably thinking he’s got nothing to lose. He can afford the team of attorneys and has the time to dedicate to this lawsuit. In addition and in a somewhat surprising move, A-Rod also has sued the MLB Players’ Association, claiming it breached its duty of fair representation to him throughout the entire process that led to his suspension, as well as the arbitration. Perhaps by going after the Players’ Association as well, he is hoping he can get discovery of information that could show the arbitration process was flawed in some way.

Either way, it will be extremely difficult for A-Rod to prevail, and while he may have continued the fight, no amount of money or resources will enable him to emerge victorious unless a smoking gun somehow magically appears. This situation highlights the importance for employers to ensure the proper drafting and negotiation of arbitration agreements with their employees, or with the employees’ representative union. Because if you succeed in the less costly and more efficient forum of arbitration, it’s doubtful that at the other side of the table sits a millionaire with motivation to spend whatever it takes to pursue the unlikely dismissal of such an award.

“I meant, are you in here for drugs?”

December 16, 2013 - by: David Kim 0 COMMENTS
David Kim

Drugs are no laughing matter, except of course when it comes to the referenced exchange between Charlie Sheen’s character and Jeannie Bueller in Ferris Bueller’s Day Off. Yet, when it comes to our celebrity news cycle, drug use is as prevalent as steroid use has become in baseball.

The latest scandal involves Nigella Lawson, most well known as a food writer and television personality for a variety of cooking shows, including the currently running The Taste on ABC. Now, I’m neither a foodie nor a reality TV junkie. In fact, the only reality TV shows I watch are Top Chef, where half the time I have no idea what ingredients they are referring to, and Shark Tank, because I find it entertaining when Mr. Wonderful blasts an entrepreneur’s terrible business idea. And while I had never heard of The Taste, and barely knew of Nigella Lawson, the recent headlines involving her life have come front and center and have taken on a soap opera-ish feel.

read more…

Oh [no], Canada!

November 17, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Unless you’ve been under a rock for the past couple of weeks, you’ve probably heard about Toronto’s crack-shutterstock_128700830smoking mayor, Rob Ford. No, I don’t mean that term in the figurative sense or as a commentary on some outlandish political policy he has chosen to pursue. I mean it quite literally, as Rob Ford admitted in a November 5 press conference to smoking crack cocaine while in one of his “drunken stupors.” (I’m not kidding. Those are his words.) And while we Americans all know Canadian beer is like moonshine, that’s hardly an excuse for an elected official choosing to dance with the devil—even one as offensive and scandal-ridden as Ford, who some have labeled as “Mayor McCrack.”

Sadly, Toronto is not the first major city to go through such a scandal. Most of us remember the time when Marion Barry, then mayor of our nation’s own Capital, was caught on tape himself smoking crack. Barry, of course, was arrested and served six months in prison, only to be re-elected mayor four years later. So maybe there’s still hope for Ford. And if you’ve read much of what he’s been quoted as saying, you might think a little time out of the spotlight would do him some good.

Aside from making the jobs of late-night talk show hosts extremely easy over the past couple weeks, Ford’s admission has supplied this blogger with the necessary segue to highlight an important employment law topic: drugs in the workplace.

A recent study by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration shows drug abuse is still a major issue for employers. The study found that most illicit drug users in the United States are employed. In fact, the study revealed “of the 21.5 million current illicit drug users aged 18 or older in 2012, 14.6 million (67.9 percent) were employed either full- or part-time.” That’s a lot of current drug users inhabiting your workplace. Especially when drug use can result in lower productivity and lower quality work, increased absenteeism, and greater risk of on-the-job injuries. All of these things can negatively affect your company’s bottom line.

What employers can do

Employers aren’t powerless to combat drugs in the workplace. Drug- free workplace programs can be powerful tools in spreading prevention messages and intervening early with those who have already begun to use drugs. For many individuals, especially those who may deny that their use of drugs is problematic, workplace-based programs can be a critical step along the road to treatment and recovery. Every workforce is different and drug-free workplace programs should be tailored to match a company’s individual needs. Effective drug-free workplace programs generally include five elements:

  1. A written policy that provides a clear description of prohibited behaviors, as well as an explanation of the consequences for violating the policy.
  2. Supervisor training to ensure managers understand the policy and know how to recognize potential substance abuse issues as well as how to refer employees to professional help.
  3. Employee education programs that provide information on company policy, how to comply with the policy, the consequences of violations, and general information on the dangers of substance abuse.
  4. Employee assistance programs that help prevent, identify, and resolve issues relating to substance abuse, including counseling and referral to professional help, which can be an alternative to dismissal.
  5. Drug testing that deters and detects drug use and provides concrete evidence for intervention.

Due to the variance of state and local laws concerning employee drug testing, it’s critical that any decision to implement employee drug testing be reviewed to ensure that it is compliant with the laws of your jurisdiction. Many states encourage drug-free workplaces by offering protection from civil liability or a reduction in workers’ compensation premiums for employers that adopt compliant drug-testing policies and procedures. Other states prohibit employee drug testing or limit the manner and circumstances for which drug testing may be performed.

Check your state law

But wait. There’s more! To date, at least 20 states plus the District of Columbia allow their citizens to use marijuana for medical purposes. Two of those states–Colorado, and Washington–recently passed measures legalizing recreational use. While the provisions of state medical marijuana laws vary, generally state courts called upon to determine the extent of an employer’s obligation to accommodate employees using marijuana under the medical use laws have found no such obligation either express or implied. Some state laws, however, provide more protection for employees. For example, the laws in Rhode Island and Maine prohibit employers from penalizing an individual merely because of the person’s status as a medical marijuana user.

Arizona’s law goes even further, prohibiting discrimination against a registered qualifying patient based on that person’s positive test for marijuana unless the patient was impaired by marijuana on the employer’s premises or during the hours of employment. While the law doesn’t require an employer to permit an employee to ingest marijuana at work or to work while under the influence of marijuana, it also states that a registered qualifying patient is not considered to be under the influence of marijuana solely because that person tests positive for marijuana metabolites in an amount that is insufficient to cause impairment.

Because of the various approaches applied by the several states and the ever-developing nature of this area of the law, it’s important that you seek help from an experienced professional when developing and implementing a drug-testing policy.