Don’t Fire Your Employee for Taking Opioids so Fast – Lawsuit Alert

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.

To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:

1. Determine if the opioid use is legal or illegal.

• The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
• Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

2. Provide Reasonable Accommodations.

• Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
• Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
• It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
• Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.

3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.

4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.

You can access EEOC’s guidance HERE and HERE.

EEOC Guidance on Antibody Tests and COVID-19 Tests

The Equal Employment Opportunity Commission (EEOC) published guidance concerning business practices that are both safe and compliant with anti-discrimination laws during the COVID-19 pandemic. The guidance discusses various relevant practices but most notable of which is the EEOC’s guidance on medical examinations prior to employees re-entering the workplace. According to the EEOC, antibody tests may not be required by employers for employees to re-enter the workplace, but employers may require employees to undergo a COVID-19 test to re-enter.

The EEOC advised that antibody tests should not be used to make decisions about returning to the workplace and currently does not meet the Americans with Disabilities Act (ADA)’s “job related and consistent with business necessity” standard for medical examinations for current employees. This standard applies to any mandatory medical test for employees. Thus, an antibody test may not be required for an employee to enter the workplace and employers should be aware that requiring antibody tests could be the basis of a discrimination claim.

On the other hand, tests which determine if someone has an active case of COVID-19 are permissible under the ADA and employers may use it to make decisions on whether an employee should return to the workplace. The distinction is that an employee who is currently infected with COVID-19 poses “a direct threat to the health of others.” However, employers should still be aware of the possibility of an employee testing false-positive or false-negative and employers should ensure that tests are accurate and reliable.

Nonetheless, employers are encouraged to practice social distancing, regular handwashing, and the wearing of PPE’s as there is no certainty that employees will not be infected with COVID-19 after the test is administered. In addition, employers should contact counsel to have a tailored COVID-19 safety plan compliant with federal anti-discrimination laws and regulations while ensuring a safe workplace for employees.

FedEx Ground Agrees to Pay $3.3 Million to Settle Disability Discrimination Lawsuit

The Equal Employment Opportunity Commission ("EEOC") issued a press release today announcing that it entered into a consent decree with FedEx Ground to settle a disability discrimination lawsuit brought pursuant to the Americans with Disabilities Act ("ADA"). The federal lawsuit was filed on behalf of deaf and hard-of-hearing package handlers and applicants to those positions alleging that FedEx Ground denied deaf and hard-of-hearing package handlers reasonable accommodations and denied applicants employment because of their hearing related disabilities.

The consent decree entitles the 229 aggrieved individuals to a share of the $3.3 million settlement. In addition, the settlement requires FedEx Ground to provide accommodations to deaf and hard-of-hearing package handlers including access to live and video remote sign language interpreting, closed captioning on videos and provision of non-audible cues (i.e. vibration) on scanning equipment. Finally, the consent decree requires that FedEx Ground institute safety measures to protect hearing compromised package handlers including ensuring that motorized equipment include visual warning lights and providing personal notification devices that will notify hearing compromised handlers of an emergency.

This settlement should serve as a reminder to employers to ensure that procedures are in place for employees to request a reasonable accommodation and that accomodation requests are granted to the extent that they are reasonable and can assist employees in performing the essential functions of their positions.