Can an employee with COPD sue a Florida company over perfume, cologne, cigarette smoke smells in the workplace?
Can an employer fire a worker who has a seizure?
Can you joke about an employee with Celiac Disease?
Can a business fire an employee who misses work because of asthma?
Does the ADA Require Automatic Reassignment to Another Position?
Florida business owners and Human Resource officials may be violating discrimination laws if they do this. Recently, a preschool hired an employee as an afterschool teacher. At the time of hire, the employee disclosed his prior opiate addiction and participation in a Medication-Assisted Treatment (MAT) program, through which he was legally prescribed the drug Suboxone as part of his treatment.
According to the EEOC lawsuit in that other case, the company made a conditional job offer to a qualified applicant (who was also a recovering drug addict enrolled in a supervised medication-assisted treatment program) for a laborer position. During his post-offer physical examination, the applicant explained that he was taking medically prescribed suboxone. However, the business failed to conduct an individualized assessment to determine what effect, if any, the suboxone had on his ability to perform the job. When the applicant reported for his first day of work, the company informed him that it could not hire him because of his suboxone use.
The EEOC attempted to resolve this matter but was unable to reach a resolution with the employer that was satisfactory to the EEOC. The EEOC then brought a lawsuit in federal court where it contended that the employer violated the ADA when it failed to conduct an individualized assessment prior to terminating the employee. EEOC v. Foothills Child Development Center, Inc., Civil Action No. 6:18-cv-01255-AMQ-KFM.
About thirty minutes into his first work day, the employer fired the employee due to his Suboxone use.The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which determined that the employer violated the Americans with Disabilities Act (ADA).
According to the EEOC, the assessment would have helped determine what effect, if any, the Suboxone had on the employee’s ability to perform his job duties. According to the lawsuit, such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability.
Suboxone, like methadone, is a synthetic opioid. Unlike its predecessor, Suboxone was created with the primary purpose of helping to fight addiction. Suboxone is a combination of buprenorphine with naloxone. Researchers found buprenorphine, and therefore Suboxone to be 6 times safer than methadone.The employer recently agreed to settle the discrimination lawsuit. As part of the settlement, the employer is required to pay the employee who only worked 30 minutes, $5,000.
In addition, the company has entered into a whopping five-year consent decree which requires it to amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully-prescribed manner. The business also agreed to create an ADA-compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug, or illegal substance rehabilitation program in order to determine whether the individual can safely perform the essential functions of her/his position with or without reasonable accommodation. The consent decree also requires the company to provide annual training on the requirements of the ADA and its prohibition against discrimination and retaliation in the workplace, and to report to the EEOC the identities of all applicants who were denied employment and employees who were terminated due to current or past alcohol, drug, or substance use.
This is the latest example of a trend by the EEOC to go after employers who discriminate against employees for participating in Medication-Assisted Treatment for drug addiction. Just a few months ago, another company settled a similar lawsuit brought by the EEOC. EEOC v. Volvo Group North America, LLC, Civil Action No. 1:17-cv-02889. As part of that settlement, the company in that case agreed to pay $70,000 and furnish significant equitable relief to settle the federal disability discrimination suit.
Opioid addiction? Can you fire an employee who uses the drug Suboxone?
The EEOC argued that if the company had conducted an assessment of the candidate’s situation, they would have discovered that the worker had been in the drug rehabilitation program for 8 years, undergoing monthly counseling and urine testing to prevent relapse into dependence on opioids and heroin. During this time, he worked without incident. According to the EEOC, at all relevant times, the applicant was qualified to perform the essential functions of the position.
In addition to the $70,000 in monetary relief to the applicant, the three-year consent decree resolving the suit enjoins the company from violating the ADA in the future. The business will distribute to all employees at facility an ADA policy explaining the right to a reasonable accommodation for a disability unless it would pose an undue hardship. The employer also will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a direct threat as defined by the ADA, including providing a reasonable accommodation as required by the ADA. The company will also provide ADA training, including on how the law relates to drug screening and the use of lawfully prescribed medications. he business will also report to the EEOC on how it handles any complaints of disability discrimination and post a notice regarding the settlement.
EEOC spokespersons comments on these cases included the following:
I wonder if Florida business owners and Human Resource directors realize how powerful this information is and what it can do for you. You can avoid disability discrimination lawsuits by recognizing this hot button issue. If you have an applicant or employee who advises that they taking medically prescribed methodone or suboxone, you should resist the knee-jerk reaction of firing the employee. You should consider promptly contacting an experienced employment discrimination lawyer to have them assist you in handling this matter. Specifically, your Florida employment law firm should discuss with you how to conduct an individualized assessment to determine what effect, if any, the suboxone has on the employee’s ability to perform the job.
The “facts” included in this article were taken from the EEOC’s lawsuits and press releases.
If your Florida company has received a request by an employee to make some type of accommodation, please contact an experienced disability law firm, such as the Law Office of David Miklas, P.A. by email or by calling 1-772-465-5111.
If you know a Florida business owner or Florida human resources professional who would find this article interesting, you can easily share it with one click to social media or email.