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Medical Marijuana, the ADA, and Hiring/Firing

Is the use of medical marijuana a justified reason for termination? Or is that a violation of the Americans with Disabilities Act? With the legalization of medical marijuana use in several states, drug screenings during the hiring process just got trickier.

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EEOC vs The Pines of Clarkston

Jamie Holden, a licensed practical nurse, applied for a position as nursing administrator with The Pines of Clarkston, an assisted living facility, in Michigan. Holden was offered the position contingent on the results of a routine drug screen. The results of the drug screen revealed high levels of marijuana. Holden met with her supervisors to explain that she uses medical marijuana for her epilepsy. After being questioned about her epilepsy, Holden was told that they did not believe she could perform the job. A few days later Holden was terminated for violating the company’s drug-free workplace policy.

Holden filed suit with the Equal Employment Opportunity Commission (EEOC) and maintains that her termination was not related to her use of medical marijuana, but rather that she suffers from epilepsy – a violation of the Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The Pines maintains that Holden was fired because she violated their zero tolerance drug policy by using medical marijuana.

The Pines of Clarkston agreed to a four-year consent decree that resolves the dispute without admitting guilt. The company also agreed to pay $42,500 and institute policies regarding discrimination and training on the ADA.

Tips for Employers

This case got sticky because the candidate revealed a medical condition covered by ADA protections. With medical marijuana use expected to skyrocket, drug tests on their own may no longer be a reliable screening process and, in fact, may open a can of worms in terms of medical conditions. More court cases at the state and federal level eventually will shape employment drug-screening policies. In the meantime, when failing to hire a candidate or terminating an employee with a medical condition – whether the employee uses medical marijuana or not – employers must never make decisions based on the protected medical condition.

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What Is the Americans with Disabilities Act?

The ADA became law in 1990 and bans discrimination against individuals with disabilities in all areas of life – employment, transportation, public accommodation, communications, and governmental activities.

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Employee Fired for Postpartum Depression

An employee who provided customer assistance to healthcare patients and pharmacists soon found herself in need of an advocate for her own disability case.

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A Reimbursement Case Advocate, Meron Debru, informed her employer (The Lash Group Inc.) of her pregnancy and requested short-term disability leave for the birth of her child. Her doctor was concerned that Debru was suffering from postpartum depression and did not release her to return to work, and for nearly five months after her short-term disability ended, she was unable to work because of the postpartum depression, which is considered a disability related to childbirth and is protected by the Americans with Disability Act (ADA).

The company filled Debru’s position about three months into her leave and sent her a letter of termination, stating that she had exhausted her FMLA leave and because she had taken more than six months’ leave, which was not true. Debru protested to the human resources manager, and the company sent a new letter stating that she had exhausted her allowable FMLA leave, but that she could apply for other open positions with the company.

She was released to return to work by her physician and was forced to compete for vacant positions. After applying for three positions for which she was qualified, the company still had not hired her, and they once again formally terminated her.

The EEOC took on Debru’s case (EEOC v. The Lash Group) and won. They proved that the company had refused to provide a reasonable accommodation to an employee with postpartum depression and instead fired her because of her disability.

(To be clear, the ADA does not classify pregnancy as a disability under the ADA, but any pregnancy-related disabilities, such as postpartum depression, are considered disabilities for which employers must provide reasonable accommodation).

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Lessons Learned from EEOC v. The Lash Group

  • Employers must provide reasonable accommodation to women who experience pregnancy-related disabilities.
  • Reasonable accommodation can include the extension of unpaid leave or transferring the employee to a vacant position for which she is qualified.
  • Forcing an employee to try to find a new position within the company on her own does not meet an employer’s obligation to provide a reasonable accommodation.
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Case Outcomes from EEOC v. The Lash Group

Monetary fine: $75,000

Employer must:

  • Provide reasonable accommodation going forward.
  • Revise its family and medical leave and short-term disability benefits policies and procedures to address reasonable accommodations.
  • Notify employees that they may be entitled to a reasonable accommodation (including unpaid leave) and how to request such an accommodation.
  • Provide training on the ADA and reasonable accommodations to human resources personnel, leave coordinators and managers.
  • Report to the EEOC on how it handles future reasonable accommodation requests.
  • Post a notice regarding the resolution of this lawsuit.

What is Postpartum Depression?

The symptoms of postpartum depression are more intense than the “baby blues” that many new mothers experience. Approximately 15% of all new mothers experience a more intense sort of “baby blues” known as postpartum depression whose symptoms may include:

  • Loss of appetite
  • Insomnia
  • Intense irritability and anger
  • Overwhelming fatigue
  • Loss of interest in sex
  • Lack of joy in life
  • Feelings of shame, guilt or inadequacy
  • Severe mood swings
  • Difficulty bonding with the baby
  • Withdrawal from family and friends
  • Thoughts of harming self or baby

Untreated, postpartum depression may last for many months or longer.

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The Interactive Process and Reasonable Accommodation

After an employer receives a request for reasonable accommodation from an employee, both parties need to participate in the interactive process to discover what type of accommodation, if any, the employer needs to provide. The Equal Employment Opportunity Commission (EEOC) may cite employers who skip the interactive process for failing to provide reasonable accommodation, resulting in a discrimination suit.

Medical Disability Request for Reasonable Accommodation

Employed as a hairdresser, Debra Kauffman pushed nursing home residents in wheelchairs from their rooms to the beauty shop as part of her normal job duties (Kauffman v. Peterson Health Care). After Kauffman underwent surgery, her doctor advised her to avoid pushing more than 20 pounds. Because the residents weighed much more than the doctor’s suggested work restriction, Kauffman informed her supervisor of the work restrictions and asked if someone else could wheel the residents to the beauty shop for her.

Kauffman’s employer, Peterson Health Care, claimed they would need to hire somebody to transport residents to and from the beauty shop for Kauffman and that would constitute an undue hardship for the business.

Her supervisor stated, “We just don’t allow people to work with restrictions, and you have a restriction on here…[A]s long as you’ve got the restriction we can’t employ you.”

Kauffman resigned and filed a claim under the Americans with Disabilities Act (ADA).

The Seventh Circuit Court of Appeals noted that staff members provided assistance to another hairdresser by wheeling residents to the beauty shop after Kauffman’s resignation – with no evidence that wheelchair assistance created an undue hardship for the employer or reduced the quality of care to other residents.

The Court found that Petersen Health Care could not ignore Kauffman’s initial request for accommodation, stating that the employer is required to engage in an interactive process to determine the type of accommodation that would be appropriate.

The case will proceed to a jury trial.

What is the Interactive Process for Reasonable Accommodation Requests?

The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform required job functions and if the employer can make a reasonable accommodation for the employee’s disability.

If your company uses the interactive process to find reasonable accommodation for employees, document the process to demonstrate your good-faith effort to accommodate an employee’s disability.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).

Of the roughly 97,000 discrimination charges that the EEOC receives every year, nearly 26 percent are related to claims of disability discrimination.

For more information on the ADA or reasonable accommodation, please check out our other blogs here and here.


Illinois Pregnancy Accommodation Amendments

The State of Illinois enacted Public Act 098-1050 that requires Illinois employers to provide reasonable accommodations to employees with conditions related to pregnancy or childbirth. The law, known as the Illinois Pregnancy Accommodation Amendments, modify the Illinois Human Rights Act and takes effect January 1, 2015.

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Although U.S. employers are required by the Americans with Disabilities Act (ADA) to accommodate people with disabilities, Illinois legislators were concerned that too many employers did not extend the same protections to pregnant workers.

Supporters of the Illinois Pregnancy Accommodation Amendments claimed that previous Illinois workplace laws didn’t go far enough to protect pregnant workers who often need to take unpaid leave during pregnancy or – in some cases – who are fired.

What are Reasonable Accommodations for Pregnant Workers in Illinois?

Reasonable accommodations allow pregnant workers to continue work without endangering the employee, the employee’s pregnancy, or the pregnant worker’s employment status and long-term job opportunities.

An employer may be able to forgo participation with reasonable accommodation requests if they can demonstrate that the accommodation would impose an “undue hardship on the ordinary operation of the business”.

Examples of Reasonable Accommodation for Pregnant Workers
  • Assistance with load lifting
  • Provision of seating near the work area
  • Allowance of more frequent rest and bathroom breaks
  • Private non-bathroom space for expressing breast milk and breastfeeding
  • Part-time or modified work schedules
  • Illinois private employers with 15 or more workers in Illinois during at least 20 weeks each year
  • All governmental employers
  • Companies with public contracts

Which Illinois Employers Are Covered by the Illinois Pregnancy Accommodation Amendments?

  • Illinois private employers with 15 or more workers in Illinois during at least 20 weeks each year
  • All governmental employers
  • Companies with public contracts

Illinois Pregnancy Rights Notice Requirement

All Illinois workplaces are required to display a new posting that contains information on pregnant worker’s rights. The posting is required in English, but employers may also post a Spanish version, but the Spanish version is not required.

The posting is included as part of the GovDocs Illinois Posting Compliance Package along with other postings required for Illinois workplaces:

  • Notice to Workers About Unemployment Insurance Benefits
  • Notice to Employees (Workers’ Compensation)
  • Notice to Employers and Employees (Minimum Wage)
  • Illinois Pregnancy Accommodation
  • Your Rights Under Illinois Employment Laws
  • Pay Day Notice
  • No Smoking Poster

GovDocs customers can save 20% off the purchase of all Illinois labor law posters by using coupon code BLOG20.

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Company Wellness Program Wins First Round

A U.S. District Judge in Minneapolis denied The Equal Employment Opportunity Commission’s (EEOC) request for an injunction against Honeywell, Inc. over their health screening policy that requires medical testing for employees and covered spouses by saying she “did not believe that Honeywell’s program would pose ‘irreparable harm’ to participants.”

Honeywell’s Wellness Program

Honeywell’s wellness program screens workers for blood pressure, cholesterol, blood-sugar levels, waist circumference and nicotine. Employees who fail to complete the testing are subject to monetary fines and lost contributions to health plans of up to $4,000.

Federal law bans employers from obtaining the personal health information of individual employees, but employers can use combined data to design programs to target specific health problems that can increase employer and employee health care costs.

The EEOC contends that the penalties make the testing involuntary and therefore violate the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

According to Honeywell, the policy promotes employee wellbeing and reduces healthcare premiums for healthy employees.

“We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The Decision

The District Judge stated, “What is better public policy and who is likely to succeed are not measures this court is prepared to decide…There are a number of fascinating issues for debate at a later time.”

The EEOC will continue to examine the charges the employees have filed against Honeywell.


3 Lessons for Employers after Double-Whammy ADA and GINA Court Case

In the first settled case of its kind, a U.S. employer was found in violation of both the Genetic Information Nondiscrimination Act of 2008 (GINA) and the Americans with Disabilities Act (ADA).

Fabricut, Inc., a distributor of decorative fabrics, will pay $50,000 to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces federal laws prohibit

ing employment discrimination. This is the first lawsuit ever filed by the EEOC alleging genetic discrimination.

Here are three key lessons employers should remain mindful in terms of hiring, promotion, and termination policies.

­1. Employers: Ask No Family Medical History Questions.

Employers should be sure they are not requesting information regarding family medical history at any time during hiring process or employment.

When Rhonda Jones’ temporary position at Fabricut was coming to an end, she applied for a permanent job. She received a preliminary offer from the company for permanent employment, contingent on pre-employment screening. The court ruled that Fabricut violated GINA by asking Jones questions about her family medical history during a post-offer, pre-employment medical examination.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, General Counsel of the EEOC.

GINA restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect in 2009. Title II of GINA makes it illegal for employers to discriminate against employees or applicants based on their genetic information. GINA also restricts employers from requesting or obtaining genetic information, which includes any information about an employee or applicant’s family medical history.

2. No Loopholes for Third Party Medical Providers.

Requesting family medical history through a third-party medical provider or examiner violates GINA.

After making Jones an offer of permanent employment, Fabricut sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. As part of the physical, Jones was required to disclose disorders in her family medical history.

EEOC Regional Attorney Barbara Seely. “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Note: GINA does not prohibit health insurers or health plan administrators from obtaining and using genetic test results in making health insurance payment determinations.

3. Increased Enforcement Puts Employers’ Policies in Spotlight.

The EEOC is launching a coordinated investigation and enforcement effort as part of its Strategic Enforcement Plan across the spectrum of equal employment law, which includes genetic discrimination. Although this case is considered the first one settled under GINA, it also brought to light violation of the ADA.

As part of a physical examination on Jones, Knox Laboratory concluded she suffered from carpal tunnel syndrome (CTS). Jones’ personal physician countered that Jones did not have CTS, but Fabricut rescinded its job offer based on the findings of Knox Laboratory.

In addition to the GINA violation, the EEOC alleged that Fabricut violated the ADA’s prohibition against discriminating against qualified individuals with disabilities (or perceived to have disabilities) when it rescinded Jones’ employment offer based on the belief that Jones had CTS.

In addition to the $50,000 settlement, Fabricut will post an anti-discrimination notice to employees, dissemination of anti-discrimination policies to employees and providing anti-discrimination training to employees with hiring responsibilities.

Has it been a while since you’ve updated your labor law postings? Now would be a great time to make sure your employees have access to the most current workplace postings ­and save 20%. Order our convenient Federal-on-One poster that contains all postings required for U.S. employers. It includes the EEOC It’s the Law anti-discrimination posting.