Employers, here's how you can make sure that legal meds aren't affecting your employees' safety on the job.

My colleague and fellow blogger Jon Hyman had an excellent post this week about the settlement in the Dura Automotive case -- in which the company tested its employees for both illegal and legal drugs. And that wasn't all -- according to the press release of the Equal Employment Opportunity Commission, employees who tested positive for the designated legal drugs were required to state why they were taking the medications. (In other words, it apparently wasn't enough for the employee to simply produce a valid prescription.)

As Jon points out, this is pretty clearly a violation of the Americans with Disabilities Act. Dura has now agreed to pay $750,000, provide training, and generally go and sin no more.

Off topic: Jon will be publishing a new book next year called Employer's Bill of Rights. Be on the lookout for it!

Back on: I have nothing to add to Jon's discussion of why this policy violates the ADA. Instead, I'd like to talk about what an employer can do when its employees operate heavy machinery or perform other dangerous tasks and the employer wants to ensure that they are operating at full capacity.

Here's what I'd do:

*Treat all employees who perform "hazardous duty" the same, whether they're "white collar" (like sales reps jammin' to Yanni in their Lexii while barrelling down the highway to their next call) or "blue collar" (working in manufacturing environments, climbing utility poles, driving 18-wheelers as opposed to Lexii, or painting the Golden Gate Bridge). 

You certainly don't want this guy to be under the influence while at work . . .

. . . but this is a dangerous instrumentality, too. On so many levels.

*Continue testing for use of illegal drugs as always.

*Publish a policy requiring employees who have hazardous job duties (see first bullet) to report to Human Resources or, if you have one, the company medical department if the employees are taking medication that may affect their ability to safely perform their jobs. This is how the inquiry becomes "job-related and consistent with business necessity" as required by the ADA.

*If Mary reports being on a medication that may affect her ability to safely perform the job, then consult with her health care provider as needed and, if appropriate, remove her from the job until she is safe to return. If Mary is eligible for leave under the Family and Medical Leave Act, you should let her take FMLA leave. If she is eligible for short-term disability while on leave because of the medication, do what you can to let her draw it. (Of course, if you have a vacant "safe" position that Mary can perform, you can put her in that position.)

*Let employees know through your policy that if they are on "unsafe" medications indefinitely, the company will have to assess whether they are medically qualified to continue in their jobs. The assessment should be individualized to Joe and his job, as well as any other vacant positions that may be available. Of course, you'd have to consider reasonable accommodations, and assuming that no on-the-job accommodations are available, you should put Joe on medical leave (and be sure to exhaust all FMLA leave) before terminating his employment.

Dura Automotive, this post is for you.  :-)

Off topic again: Congratulations to Dan Schwartz, who this week celebrated the fifth anniversary of his Connecticut Employment Law Blog. If you haven't seen his blog, please pay him a visit. You won't be sorry. Happy anniversary, Dan!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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