Sixth Circuit Rejects Employer's Honest Belief Defense Where It Did Not Investigate Until After Termination

Yesterday, the Sixth Circuit unanimously reversed an employer’s summary judgment on an Ohio disability discrimination claim and rejected its honest belief defense on the grounds that it did not make a reasonably informed and considered decision.  Fisher v. Airgas USA LLC, No. 23-3286 (6^th Cir. 1/31/24).  The plaintiff had been taking legal hemp to help with pain and nausea from his cancer treatment.  However, although he told his employer that this might have caused a false positive test for marijuana (and there was evidence that he tested positive for THCA and not TCH), it did not investigate or discuss this with the testing laboratory until after it fired him.  Because it did not investigate the matter or tell the lab about his hemp use until after his termination, it did not make a reasonably informed and considered decision, which is necessary to rely on the honest belief doctrine.   Moreover, because it did not even discuss the issue with the lab until after his termination, they could not rely on that conversation to support their honest belief defense.  It only matters what they knew before he was fired.

According to the court’s opinion, the plaintiff was diagnosed with liver cancer a month after he was hired.  After working successfully for about a year, he was granted a medical leave for surgery and treatment.  Upon returning to work, he experienced pain and extreme nausea and began taking small amounts of hemp, without informing his employer, whose policy did not ban its use.  He was then randomly selected for a drug test, which indicated that he tested positive for marijuana.   He requested a repeat test, explaining for the first time that his hemp may have caused a false positive.  The employer obtained a re-test of the same sample, but did not tell the lab about his use of hemp.  The employer also did not ask the lab if hemp would cause a false positive.  In the meantime, the plaintiff contacted the lab’s MRO, who said he had tested positive for THCA, not THC.  The employer fired him anyway.  It later contended that when it contacted the lab’s CMO (after the plaintiff’s discharge) that it was told that he tested positive for THC.  However, the CMO’s affidavit says otherwise -- that he only tested positive for THC.  Nonetheless, the employer refused to reinstate him.

The plaintiff filed suit for disability discrimination.  The trial court granted the employer’s summary judgment motion based on the honest belief rule, but the Court of Appeals reversed.

[The plaintiff] expressly raised with [the employer]—specifically for purposes of his retest— the question whether his hemp usage had caused his sample to test positive for marijuana. Yet [the employer] did nothing to investigate that possibility—even though doing so would have been as easy as sending an email to [the lab] flagging that possibility. [The employer] therefore has not established— as a matter of law, as necessary for summary judgment—that it made a “reasonably informed and considered decision.”

In addition, for purposes of the honest belief rule, the employer could not rely on alleged conversations with the lab -- disputing that hemp could have caused a positive THC test -- because those conversations were not held until after the plaintiff’s employment had been terminated.

[The employer] counters that [the lab’s] Chief Medical Officer . .. . told [it] that hemp could not have caused [the plaintiff’s] positive tests. But that confirmation came after [it] fired [him], not before. And the only facts that matter for purposes of the honest-belief rule are those that were before the employer “at the time” it fired its employee.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Enacts Medical Marijuana Statute

Earlier this month, Governor Kasich signed House Bill 523 authorizing a restrictive version of medical marijuana in Ohio. The statute becomes effective on September 8.   Medical pot cannot be smoked in Ohio even by prescription and will be regulated like other drugs. The statute also contains a specific provision – Ohio Revised Code § 3796.28 --  permitting employers to prohibit marijuana use by its employees, to deny accommodation of medical marijuana, and to contest unemployment compensation and workers compensation when the claimant-employee has been fired for using medical marijuana in violation of the employer’s policy or formal program.   Medical marijuana remains illegal under federal law.  That being said, there remains a risk that courts will eventually treat medical marijuana like any other legally prescribed (under state law) controlled substance and find that the ADA requires the reasonable accommodation of off-duty medical marijuana use even if the employer prohibits off duty illegal drug use.   In that event, an employer may need to show that the employee was impaired at work.

Sec. 3796.28. (A) Nothing in this chapter does any of the following:

(1) Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;

(2) Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana;

(3) Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;

(4) Interferes with any federal restrictions on employment, including the regulations adopted by the United States department of transportation in Title 49 of the Code of Federal Regulations, as amended;

(5) Permits a person to commence a cause of action against an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment related to medical marijuana;

(6) Affects the authority of the administrator of workers’ compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program established in accordance with rules adopted by the administrator under Chapter 4123. Of the Revised Code.

(B) A person who is discharged from employment because of that person’s use of medical marijuana shall be considered to have been discharged for just cause for purposes of division (D) of section 4141.29 of the Revised Code if the person’s use of medical marijuana was in violation of an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.

The ADA contains a specific section on the illegal use of drugs and alcohol at 42 U.S.C. § 12114.  A “qualified individual with a disability” does “not include any employee or applicant who is currently engaging in the illegal use of drugs. . . . “  Tests “to determine the illegal use of drugs shall not be considered a medical examination.”   However, “illegal use of drugs” is defined earlier at §12102(6)  to mean the use of drugs which are “unlawful under the Controlled Substances Act,” but “does not include the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act or other provisions of Federal law.”  “Drug” means “a controlled substance as defined in schedules I through V of section 2020 of the Controlled Substances Act.”  While medical marijuana is not authorized by the CSA or other provisions of federal law, in Ohio and other states, it can now be taken under the supervision of a licensed health care professional as provided in the ADA.  Therefore, an argument could conceivably be adopted by a court in the future that medical marijuana does not constitute an illegal drug under the ADA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Xenia Employer Settles ADA Failure to Hire Lawsuit With EEOC for $30K

Yesterday, the EEOC  announced that a Xenia, Ohio employer had settled a lawsuit alleging that it had violated the ADA by rescinding a job offer in October 2012 on account of lawfully prescribed medication taken by an applicant to control a seizure disorder.    The EEOC filed suit in the federal court in Dayton (at  Case Number 3:14-cv-0211)  in June 2014 against Save Edge, Inc. (f/k/a File Sharpening Company, Inc.) asserting that its job offer had been withdrawn because it regarded the applicant as disabled and incapable of safely performing the duties of the operator position.  According to the EEOC’s Complaint, the applicant’s medication had been revealed during a pre-employment drug test.  The applicant never sought any accommodation or suffered any work restrictions on account of his medical condition or medication.   In the lawsuit, the EEOC sought back pay, front pay, lost health insurance benefits, punitive damages and injunctive relief.

In addition to paying $30,000 to the rejected job applicant (for back pay, interest, and compensatory and punitive damages), the employer is required by the consent decree to:

·        Prohibit future discrimination by its officers, managers and employees against disabled employees or applicants,

·        Prohibit future retaliation by its officers, managers and employees against applicants or employees who exercise their rights to complain about discrimination or assist in an investigation or discrimination-related proceeding,

·        Implement within 60 days a written disability policy and procedures to ensure equal employment opportunities are afforded to employees and applicants with disabilities,

·        Post within 5 days a notice of non-discrimination at its facility,

·        Train its managers, supervisors and human resources personnel every year for three years about the ADA and employment discrimination; and

·        Report annually for three years to the EEOC its compliance with the consent decree, including attendance at the mandatory training, the agenda of the training, the continued posting of the notice, and information about any requests for reasonable accommodations and internal complaints of disability discrimination, etc.

There was nothing in the EEOC press release about the employer being required to offer employment to the rejected job applicant.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Drug Testing Could Be Prohibited Medical Examination or Inquiry Under ADA

On Tuesday, the Sixth Circuit issued an interesting decision about drug testing and medical inquiries under the ADA which involved a group of plaintiffs who did not have disabilities covered by the ADA.   Bates v. Dura Automotive Systems, No. 11-6608 (6^th Cir. 8-26-14).  After a number of substance abuse issues at the manufacturing facility, the defendant employer began testing employees for any controlled substances which contained warnings about operating machinery.  Some of these substances were contained in lawfully prescribed medications for various medical conditions, although none of the plaintiffs claimed a disability under the pre-2008 ADA.  When an employee tested positive, they were to notify only a third-party facility of the medication being taken and the employees were warned to cease using that medication.  If the employee tested positive again, they were fired.  The plaintiffs filed suit claiming the testing constituted unlawful medical examinations and inquiries under the ADA.  The trial court ruled that the tests were both medical examinations and inquiries and submitted to a jury whether the employer was justified in making the request.  The jury ruled in favor of the plaintiffs and awarded compensatory and punitive damages of over $870,000.  On appeal, the Court remanded the matter for reconsideration as to whether the tests were medical examinations or inquiries, but affirmed the jury verdict that the employer lacked a business justification since there were other, less obtrusive means of improving workplace safety which the employer had not utilized.  On remand, a factual dispute remained as to whether there was any diagnostic component to the drug testing program.

According to the Court’s opinion, the employer conducted urinalysis testing of all employees for 12 substances, some of which are contained in prescription medications.   Positive results were referred to a Medical Review Officer. 

 

In reviewing the test results, MROs questioned employees about medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If the MRO determined that the employee had a valid reason for the non-negative result, including use of prescription medications, the MRO changed the final test result to negative.

So far, so good. No employees were ever asked about their medical conditions and the employer never knew what medications the employees took.  However, the contractor administering the test decided to ignore the MRO’s revisions, “opting instead to prohibit any employee use of machine-restricted drugs.”  The employees were then fired after testing positive again for a lawfully prescribed medication after being warned to discontinue the drug.  One of the plaintiffs was terminated following a random drug test.  No individualized assessment was made about the threat posed by the employee.

The plaintiffs claimed that the drug testing was an unlawful medical examination and inquiry and that the employer was using a qualification standard to screen out individuals with disabilities.  The second theory was rejected because the plaintiffs – who were not disabled – lacked standing to assert it. Bates v. Dura Auto. Sys., Inc. (“Bates I”), 625 F.3d 283, 285–86 (6th Cir. 2010). 

Under the ADA: “[t]he prohibition against discrimination  . . . shall include medical examinations and inquiries.” 42 U.S.C. §12112(d)(1).  Employers  may not “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  Id. at 12112(d)(4).   Nonetheless, “a test to determine the illegal use of drugs shall not be considered a medical examination.”  Id. at §12114(d)(1).

The employer’s drug testing program was not protected by the safe harbor in §12114(d)(1) because it encompassed a test for lawful drug use, not just illegal use of drugs.

The Court relied almost exclusively on the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations, which identifies eight factors to consider whether a test is a medical examination:

(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used.

The eighth factor is “whether ‘the employer [is] trying to determine the applicant’s physical or mental health or impairments.’” 

The trial court erred, among other things, by incorrectly believing that because a random urinalysis test for alcohol abuse was illegal, then a random urinalysis for lawful prescription drugs must also be illegal.  The Court examined the factors from EEOC enforcement guidance concerning medical examinations and noted that the tests were administered in a medical setting, by medical professionals and were not invasive.  However, the most important factors – whether the test was designed to reveal a physical or mental impairment or determine the employee’s health – were arguably weighted against the drug tests being medical examinations because there was conflicting evidence that the employer and its contractor did not inquire into the basis for the prescriptions and focused exclusively on whether they contained warnings against operating machinery.  As noted by the Court:

the test-design factor and the EEOC definition of medical examination would permit a reasonable jury to decide the matter in Dura’s favor. If one credits Dura’s explanation and the objective evidence shows its drug-testing protocol is unlikely to reveal employees’ medical information, then the testing does not qualify as a medical examination under the EEOC definition.

Moreover,

[w]hen asked at oral argument how Dura’s third-party administered test exposes information about employee health, the EEOC responded “it can,” noting that the presence of anti-seizure medication would divulge that specific condition. (O.A. at 34:40–35:00.) In the absence of specific evidence making this connection, we decline to elevate this possibility into the probability necessary for ruling on this issue as a matter of law. Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

                . . . viewing the evidence in its favor, we cannot say as a matter of law that Dura used FFS’s drug tests to seek information about plaintiffs-appellees’ medical conditions, or even that such revelations likely would result.

The Court applied a similar analysis as to whether the tests constituted prohibited disability-related inquiries.   The EEOC’s own guidance “defines disability-related inquiry as ‘a question (or series of questions) that is likely to elicit information about a disability.’”    The employer denied asking employees about their general prescription use.  Rather, it was only interested in drugs with warnings against operating machinery. The EEOC’s enforcement guidance did not contain blanket prohibitions against asking about drug use or even prescription drug use.  Accordingly, “a jury could reasonably conclude that [the employer] implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.” 

A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability. As noted above, plaintiffs-appellees point to no evidence showing that such a limited disclosure likely reveals information about a disability. . . .

The Court also reversed the trial court’s use of a jury instruction which necessitated that the drug testing contractor was the employer’s agent and its actions were necessarily the employer’s actions.  Instead, the Court concluded that the employer could use a contractor to shield itself from proscribed knowledge about the employee’s conditions.   While an employer may not contract with an entity to violate the ADA, a jury

may consider [the contractor’s] role in [the employer’s] drug-testing protocol to the extent that it bears on [the employer’s] intent and/or whether the testing would likely reveal plaintiffs-appellees’ physical and mental-health conditions to [the employer]. But the jury ought not be instructed to assume that, because [the contractor] obtained additional information during the testing protocol, [the employer] also sought to obtain that information. The district court’s instructions should so reflect  . . .

Despite the foregoing, the Court agreed that if the drug tests were medical examinations or inquiries, then the jury was entitled based on the evidence presented at trial to find that the employer lacked a job-related justification or business necessity.

The EEOC enforcement guidance explained that: 

a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

The employer bears the burden of proof on this issue.  The Court noted that there were disputed facts, but the jury was entitled to give greater weight to the plaintiff’s evidence:

[The employer] presented some evidence at trial supporting its drug testing—e.g., testimony and video evidence of the “congested” nature of the Lawrenceburg facility and numerous hazards there, including machinery, glass, chemicals, and forklifts. Nonetheless,  plaintiffs-appellees also presented evidence consistent with a reasonable jury conclusion that [the employer’s] showing fell short of the high standard for job relatedness and business necessity. For example, [one manager] testified that Dura neglected to make individualized risk determinations of jobs, tools, and work stations in the facility. [Two managers] also admitted that they failed to consider the plaintiffs’ abilities or the risk that they posed by taking medications. The jury could infer from this evidence that [the employer] lacked a reasonable belief, based on objective evidence, that plaintiffs-appellees’ medications impaired their abilities to do their jobs or made them dangerous to others. Further, [a manager] testified that employees had unrestricted access to hazardous parts of the facility and were not required to wear hard hats. Indeed, the video of the facility showed individuals with loose clothing, jewelry, and long hairstyles, in apparent violation of [the employer’s] safety policies. This evidence reasonably supports the conclusion that [the employer] could have advanced its interest in employee safety by other, less intrusive means.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Franklin County Court of Appeals Affirms Dismissal of ADA Claim Brought by Former Drug Addict Who was Fired After Volunteering for Strip Search After Theft Accusation.

Last week, the Franklin County Court of Appeals upheld a summary judgment in favor of a fast food employer concerning a claim for disability discrimination brought by a former employee who had been fired for theft. Turner v. Shahed Enterprises., 2011-Ohio-4654.
The plaintiff was a recovered drug addict and convicted drug offender who was hired by the restaurant after she successfully passed a pre-employment drug screen (which was apparently not administered to any applicants who had not identified prior drug convictions). After an employee identified the plaintiff as being seen placing $50 in her pocket shortly after money went missing from the manager's desk, the plaintiff was confronted with the accusation. She volunteered to undress to disprove the accusation and the assistant manager permitted her to do so in the restroom. The money was later found near the plaintiff's work station in an area where all of the other employees also had access. The plaintiff was interviewed and release by police officers, but was still fired the next day. The plaintiff claimed that she was discriminated against on account of her former addiction when she was required to submit to a drug test when other employees were not, when she was required to undress to disprove the theft accusation, and when she was fired for attempted theft.

First, the Court found that requiring the plaintiff to submit to a pre-employment drug test was not a material adverse job action that could support a claim for discrimination. Further, the Court found it permissible for employers to adopt reasonable drug testing procedures to ensure that recovered addicts did not (or had not) relapsed. The ADA specifically provides that it shall not be a violation of the ADA for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that recovered or recovering individuals are no longer engaging in the illegal use of drugs. 42 U.S.C. §12114(b).

Second, the Court found that the employer lawfully terminated the plaintiff because it believed that she had attempted to steal $50 based on the accusation of a co-worker and the fact the money was eventually found near her work area. While another employee could have placed the money there and it was not found on the plaintiff, that the employer may have been mistaken does not mean that it was not motivated by its belief that she was a thief. The plaintiff could identify no evidence that her status as a recovered addict was the actual reason that she was terminated in light of the theft investigation.

Finally, the Court dismissed her invasion of privacy claim because she had volunteered to undress in front of the assistant manager to prove her innocence even after she was told that it would not be necessary:

Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.

The outcome would probably have been different if she had been threatened with termination if she did not agree to a strip search.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.