We often receive calls from employees and employers about unpaid medical leave from work. Callers want to know whether an employee who has a serious health condition under the FMLA, but who cannot return to work after 12 weeks of FMLA leave, has any additional legal protections. The answer is that it depends. Many court cases recognize that finite and short additional periods of unpaid medical leave beyond the 12 weeks afforded by the FMLA can be a reasonable accommodation under the Americans With Disabilities Act. Employers who receive requests for additional unpaid medical leave should ask appropriate questions to determine the length of additional leave the employee is seeking, the likelihood that the additional leave will enable the employee to return to work, and how other employees who require leave for reasons unrelated to health or disability are treated. In the run of cases, finite and short periods of additional medical leave are a reasonable form of accommodation, particularly when the prognosis for recovery is favorable. This means that in many situations, an employer will be required to grant the request for additional unpaid medical leave, provided it does not impose or create an undue hardship. Of course, every case depends on its unique facts.
The so-called “business judgment” rule is subject to the “BS” rule; if the facts show that the employer’s business judgment isn’t credible, the claims will go to trial. A recent example comes from a New York federal court in Roa v. Staples, Inc., August 9, 2017, Briccetti, V.
The issue in Roa was whether the employer fired the plaintiff because of her disability, or whether it fired her for stealing a bag of potato chips. The plaintiff was diagnosed with several medical conditions that restricted her from lifting over ten pounds, raising and reaching her arms above her shoulders, turning and twisting her neck, operating electric machinery, and performing repetitive motions. She was put on “light duty,” which under Staples’ policy was a temporary modification, not to exceed six months. Her restriction from operating machinery reduced her productivity, and her coworkers voluntarily assisted her, sometimes staying after their shifts ended.
The plaintiff’s supervisor sent an email to the HR manager asking “Do we know how long we have to accommodate [the employee]?” He also stated that he had the employee working within her restrictions but her condition was getting worse and she had only been “hitting just 40% of her individual productivity.” In March, the supervisor emailed HR to recommend the employee’s pay be reduced since she wasn’t able to do as much. HR responded that they could not do this due to “disability laws,” and noting that it was important to not make changes because “her injury cases have gone into litigation.” The email also stated: “I know it’s been a long time but I promise there will be a resolution.”
A worker later complained to loss prevention that a bag of chips was stolen from his lunch bag. The investigator testified that he did not remember exactly how he investigated but he reviewed video footage and saw the employee remove something indiscernible from the bag. He also said she had been a suspect in a prior theft of a yogurt from the refrigerator. The record reflected that this investigation was unusual because the investigator relied only on the worker’s complaint and did not interview the employee or anyone else. Also, the HR manager didn’t review the video (which was not preserved) before approving the employee’s termination for theft. The HR manager testified that an honest mistake would not constitute theft. Nonetheless, the employee was fired for theft, even though she asserted in the termination meeting that she took a bag of chips because she mistakenly thought her sister left them for her, and did not commit theft.
Denying Staples’ motion for summary judgment, the Court held there was sufficient evidence of discriminatory intent to round out the employee’s prima facie case and to raise triable issues on pretext. For example, the plaintiff testified that her supervisor, who was involved in the termination decision, often expressed dissatisfaction with her restrictions, commented on her extended light-duty status, made demeaning gestures and expressions about her disabilities, and assigned her undesirable tasks, such as cleaning. There were also the emails to HR expressing frustration at her reduced productivity because of her disabilities and suggesting her pay be cut. Also, the employee was replaced with someone who could perform functions the plaintiff could not.
The court also found it significant that the alleged theft in question was a one-time event involving a single serving of chips, rather than a pattern of thefts or theft of a valuable item. Moreover, Staples failed to preserve crucial evidence used to make the termination decision and failed to interview a crucial witness (the employee’s sister).
If you are suffering from depression, post-traumatic stress disorder (PTSD), or another mental health condition, you are protected against discrimination and harassment at work because of your condition, you have workplace privacy rights, and you may have a legal right to get reasonable accommodations that can help you perform and keep your job. The following questions and answers briefly explain these rights, which are provided by the Americans with Disabilities Act (ADA). You may also have additional rights under other laws not discussed here, such as the Family and Medical Leave Act (FMLA) and various medical insurance laws.
1. Is my employer allowed to fire me because I have a mental health condition?
No. It is illegal for an employer to discriminate against you simply because you have a mental health condition. This includes firing you, rejecting you for a job or promotion, or forcing you to take leave.
An employer doesn’t have to hire or keep people in jobs they can’t perform, or employ people who pose a “direct threat” to safety (a significant risk of substantial harm to self or others). But an employer cannot rely on myths or stereotypes about your mental health condition when deciding whether you can perform a job or whether you pose a safety risk. Before an employer can reject you for a job based on your condition, it must have objectiveevidence that you can’t perform your job duties, or that you would create a significant safety risk, even with a reasonable accommodation (see Question 3).
2. Am I allowed to keep my condition private?
In most situations, you can keep your condition private. An employer is only allowed to ask medical questions (including questions about mental health) in four situations:
- When you ask for a reasonable accommodation (see Question 3).
- After it has made you a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
- When it is engaging in affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case you may choose whether to respond.
- On the job, when there is objective evidence that you may be unable to do your job or that you may pose a safety risk because of your condition.
You also may need to discuss your condition to establish eligibility for benefits under other laws, such as the FMLA. If you do talk about your condition, the employer cannot discriminate against you (see Question 5), and it must keep the information confidential, even from co-workers. (If you wish to discuss your condition with coworkers, you may choose to do so.)
3. What if my mental health condition could affect my job performance?
You may have a legal right to a reasonable accommodation that would help you do your job. A reasonable accommodation is some type of change in the way things are normally done at work. Just a few examples of possible accommodations include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.
You can get a reasonable accommodation for any mental health condition that would, if left untreated, “substantially limit” your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other “major life activity.” (You don’t need to actually stop treatment to get the accommodation.)
Your condition does not need to be permanent or severe to be “substantially limiting.” It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when the symptoms are present. Mental health conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should easily qualify, and many others will qualify as well.
4. How can I get a reasonable accommodation?
Ask for one. Tell a supervisor, HR manager, or other appropriate person that you need a change at work because of a medical condition. You may ask for an accommodation at any time. Because an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication, it is generally better to get a reasonable accommodation before any problems occur or become worse. (Many people choose to wait to ask for accommodation until after they receive a job offer, however, because it’s very hard to prove illegal discrimination that takes place before a job offer.) You don’t need to have a particular accommodation in mind, but you can ask for something specific.
5. What will happen after I ask for a reasonable accommodation?
Your employer may ask you to put your request in writing, and to generally describe your condition and how it affects your work. The employer also may ask you to submit a letter from your health care provider documenting that you have a mental health condition, and that you need an accommodation because of it. If you do not want the employer to know your specific diagnosis, it may be enough to provide documentation that describes your condition more generally (by stating, for example, that you have an “anxiety disorder”). Your employer also might ask your health care provider whether particular accommodations would meet your needs. You can help your health care provider understand the law of reasonable accommodation by bringing a copy of the EEOC publication The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work to your appointment.
If a reasonable accommodation would help you to do your job, your employer must give you one unless the accommodation involves significant difficulty or expense. If more than one accommodation would work, the employer can choose which one to give you. Your employer can’t legally fire you, or refuse to hire or promote you, because you asked for a reasonable accommodation or because you need one. It also cannot charge you for the cost of the accommodation.
6. What if there’s no way I can do my regular job, even with an accommodation?
If you can’t perform all the essential functions of your job to normal standards and have no paid leave available, you still may be entitled to unpaid leave as a reasonable accommodation if that leave will help you get to a point where you can perform those functions. You may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. More information about this law can be found at www.dol.gov/whd/fmla.
If you are permanently unable to do your regular job, you may ask your employer to reassign you to a job that you can do as a reasonable accommodation, if one is available. More information on reasonable accommodations in employment, including reassignment, is available here.
7. What if I am being harassed because of my condition?
Harassment based on a disability is not allowed under the ADA. You should tell your employer about any harassment if you want the employer to stop the problem. Follow your employer’s reporting procedures if there are any. If you report the harassment, your employer is legally required to take action to prevent it from occurring in the future.
Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.
These recent pieces from the New York Times are must reads:
The district court in Pollard v. Drummond Co., Inc., No. 12-03948 N.D. Al. (Sept. 15, 105) found a fact question on whether a coal miner using methadone to control back pain was a direct threat under the ADA. A “direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron, 536 U.S. at 86. An employer may reasonably rely on medical evidence to make its employment decisions, but this reliance must “be reasonably based on particularized facts.” Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001). An employer may not rely upon the recommendation of a physician who conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations. Lowe, 244 F.3d at 1309 (denying summary judgment where a physician recommended restrictions for a double amputee based on a cursory examination of him and a general assumption that all double amputees have the same limitations). Furthermore, an assessment based on the known possible side effects of a medication, as opposed to an individualized inquiry into a patient’s present ability to perform his job functions, is insufficient. Haynes v. City of Montgomery, No. 2:06-CV-1093-WKW, 2008 WL 4495711, at *4-5 (M.D. Ala. Oct. 6, 2008). The employer’s doctors could only speculate about the effects and side-effects of the methadone. They did not perform an individualized assessment of the employee. Moreover, the employee had worked for many years using methadone in the mines and had no significant infractions or safety issues during that time.
Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.
President George H.W. Bush signing the landmark Americans with Disabilities Act in 1990. 24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.
Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.
On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.
The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.
On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”
The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.
On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.
However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.
The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.
The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.
In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.
To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.
The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.
On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.
The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.
Highlights of the Final Rule:
Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.
Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.
Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website.
Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.
Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.
ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.
As reported April 1, 2013 by Anna Louie Sussman of Reuters:
Two recent complaints filed with the U.S. Equal Employment Opportunity Commission seek to clarify the rights of pregnant women under a 2008 amendment to the Americans with Disabilities Act. Both complaints were brought by pregnant women who said they were denied reasonable accommodations for pregnancy-related disabilities.
Since 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees. In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy-related impairments, and the EEOC issued regulations codifying the act in March 2011.
In a complaint filed Thursday, Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome. Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash. After Crosby submitted a note from a chiropractic neurologist attesting to pregnancy-related carpal tunnel syndrome, the hospital said the information needed to come from her obstetrician. Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm. Several supervisors refused her requests for work with limited lifting, and she was involuntarily placed on unpaid leave under the Family and Medical Leave Act.
“They just kept saying, ‘It’s policy, it’s policy,'” Crosby told Reuters.
According to the complaint, which was filed by the National Women’s Law Center, other hospital employees who had suffered injuries or were otherwise unable to complete aspects of their jobs had been accommodated.
A spokesman for the hospital said he had not seen the complaint and could not comment on it.
A separate complaint filed in January by the American Civil Liberties Union alleges that United Parcel Service Inc failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.
In August, the company offered her a light-duty position on the condition that it would not count toward seniority or benefits, an offer she described as “unlike, and worse than UPS’s accommodation of other, non-pregnant employees.”
A spokeswoman for UPS said the company does not discriminate against pregnant workers and that it adheres to all aspects of the law.
Typically, the EEOC attempts to mediate between the parties, and if that fails it investigates the claim. If the investigation finds that a law has been violated, the EEOC can settle, sue or, in some cases, refer the case to the Department of Justice. If no violation is found, the aggrieved party can still sue privately.
A spokesman for the EEOC declined to comment on the two cases.
But in its three-year strategic enforcement plan, released in December 2012, the agency identified accommodating pregnancy-related limitations under ADAAA and the PDA as an “emerging issue.”
With little case law on the books since the regulations were issued in March 2011, employers are in uncharted waters, said Stacie Caraway, an employment lawyer at Miller & Martin PLC in Chattanooga, Tennessee, who is not involved in either case. For example, she said, it is difficult to tell whether the hospital’s request for additional documentation was unreasonable. “We had 25 years of case law with the ADA to tell us what was reasonable and what was not, but now we’re starting from scratch,” she said. “That’s what makes these cases kind of a crapshoot.” Employers should be “conservative” and lean toward accommodating workers where possible, Caraway said. “If the proof shows that someone has a pregnancy-related disability, then the employer does have a duty to accommodate it as with cancer or any other disability.”
The two cases highlight changes in the legal landscape since the Americans with Disabilities Amendments Act was passed. In a 2008 case filed a few months before the law came into effect, the 4th U.S. Circuit Court of Appeals ruled that the Pregnancy Discrimination Act did not require UPS to accommodate pregnant worker Peggy Young by offering her light duty, despite offering it to workers injured on the job. “The ADAAA certainly broadens the definition of disability and means that a number of conditions caused by pregnancy might be treated as disabilities now, where they wouldn’t have before,” said Samuel Bagenstos, a professor at the University of Michigan Law School and a prominent disability rights advocate. Bagenstos and other lawyers are preparing a petition on Young’s behalf at the U.S. Supreme Court.
Cara Greene, a co-chair of Outten & Golden’s Family Responsibilities and Disability Discrimination practice group in New York, said these cases highlight how the PDA and the ADAAA interact to require accommodations that the court denied to Young. “Employers are missing the fact that just because a disability results from pregnancy, it doesn’t mean they don’t have to accommodate it,” Greene said.
Legislation to codify these obligations has stalled. The Pregnant Workers Fairness Act, introduced last year in Congress, would require employers to make the same types of accommodations for pregnancy, childbirth and related medical conditions as they do for disabilities. It is due to be reintroduced this spring, according to a spokeswoman for the National Women’s Law Center. Galen Sherwin, a staff attorney with the American Civil Liberties Union’s Women’s Rights Project, said that the two laws, the PDA and the ADAAA, should already be sufficient. “If employers are now required to treat a broader category of disabled individuals with compassion by providing them the necessary job accommodations, but they are refusing those same type of job accommodations to pregnant women, that really flies in the face of Congress’s intent in passing the PDA.”
It has been more than 10 years since the U.S. invasion of Iraq, the start of a war that still divides our nation. President Barack Obama pulled the final U.S. forces out, but the war is still taking a toll on veterans and their families, on our federal finances and on Iraqis. In the wake of 9/11 President George Bush and Secretary of State Colin Powell made the case that Saddam Hussein was set to use weapons of mass destruction, which he did not possess. The war cost $2.2 trillion. 100,000 Iraqis died. Nearly 4,500 Americans lost their lives, many lost limbs and countless others returned from service suffering from PTSD and Depression.
Unfortunately, thousands of United States servicemen and women are still struggling to find work. Yes, unemployment remains high, but the rate of unemployment among our veterans of foreign wars is much higher than the national average. One cannot help but wonder to what extent American employers are holding our Nation’s veterans’ military service against them, possibly stereotyping them as psychologically damaged, unreliable or too costly to insure. Returning veterans who are experiencing difficulty finding work should understand that they are not the problem. Employers are not allowed to discriminate against applicants for employment on the basis of prior military service. Nor are they allowed to refuse to employ veterans who may require reasonable accommodations to re-integrate into the civilian workforce.
An Ohio company has been fined $50,000 by the EEOC after firing an employee who tested positive for a prescribed medication for her bipolar disorder. The agency accused the company of violating the Americans with Disabilities Act. Chassity Brady was a quality control lab technician in the Braselton, Ga. facility of Dayton Superior Corporation, a concrete and masonry construction company, according to the EEOC. After Brady had an adverse reaction at work to a drug prescribed to her to treat her bipolar disorder, Dayton Superior forced her to take a drug test. Even though the only thing she tested positive for was the bipolar drug, the employer fired her. The EEOC filed a lawsuit on Brady’s behalf in September. Under the settlement announced Jan. 4, Dayton Superior agreed to pay Brady $50,000 and to complete training, report to the EEOC, and post relevant notices.
Employers are never supposed to make hiring and firing decisions based on disabilities – including those that are only indicated by a prescription, and employers must be careful before firing someone for taking medically indicated prescription medications. In another case, the employer had an actual policy and practice of drug testing employees for not only illegal drugs but also a group of perfectly legal prescription medications. In that case, the EEOC fined a Tennessee employer $750,000. The EEOC said Dura Automotive Systems required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications. Dura also said employees could only keep their jobs if they stopped taking their meds. “Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications,” said the EEOC.
If your employer utilizes any such policy, talk to a lawyer or consider filing a charge with the EEOC. Making employment decisions on the basis of stereotypical assumptions about disability-based medications is one of the problems the ADA was designed to combat.