A boom time for employee protections

While during the Bush years it was common to see only a handful of direct actions against companies by the Equal Employment Opportunity Commission (EEOC) in a typical month, September 2009 saw 170 such actions, says Thomas Eden III, an Alabama employment attorney who has conducted trainings on drug testing policy development in more than three-quarters of the states. While these enforcement actions involved a wide range of allegations of discrimination, Eden says it is clear that uncovering employers' potential violations of the Americans with Disabilities Act (ADA) represents a priority area in the Obama administration.

“The ADA is one of their primary tools,” Eden says. “This will be my 30^th year of practice, and this is the most activist EEOC I've seen since the first couple of years of the Clinton administration.”

For addiction treatment organizations that serve individuals who are trying to maintain or regain a footing in the workplace, this trend in Washington is likely to receive a warm welcome. “I would think they'd be happy that protections are available to their client base, and that employers will not be able to run roughshod,” Eden says.

Of course, addiction treatment organizations in their other role as employers of clinicians and other personnel might also want to become more acquainted with elements of employment law and whether authorities could call into question some of their own policies and practices, including those governing drug testing.

Broad protections

Eden cites a recent court case originating in Alabama to point out that ADA protections often extend to individuals even when they are not officially considered part of a protected category.

In the case, a temporary worker employed by a Huntsville electronics manufacturer that does defense work was asked to take a pre-employment drug test as he was being considered for a permanent position. Eden explains that the test came back positive, and the worker was summoned to meet with the company's human resources manager. At that meeting with the HR representative, the company's Medical Review Officer was called on the telephone and, with the HR officer present, the worker explained over the phone that he had taken barbiturates by prescription since early childhood to control seizures.

Eden says that despite this explanation, the worker ended up not receiving the full-time job offer, and instead his temporary employment agency was asked no longer to send him to the company for assignments. He was then dismissed from the temp agency as well.

The man sued the employer, alleging that the company had asked him prohibited pre-employment questions about his health and that the actions against him were taken based on a perceived disability. The U.S. District Court sided with the electronics company, but the 11th Circuit Court of Appeals reversed the lower court's decision.

“A company can be found to be making an improper inquiry in certain cases where there is a perception of a disability,” Eden says.

Eden believes that once final regulations are issued for the ADA Amendments Act of 2009, which took effect Jan. 1, 2009, claims based on an individual being perceived as disabled will rise.

He adds that the recent Alabama court case offers employers much reason for pause about their own workplace policies. Several mistakes were made by the company in question, Eden says, from premature reporting of the positive test by the Medical Review Officer to HR's inappropriate monitoring of the phone conversation involving the worker. Eden's overall message to employers regarding the effort to stay within the bounds of the ADA is “the less they know, the better.”

He adds, “The main question they need to focus on is, ‘Can the worker perform the essential functions of the job?’”

It is a “brave new world with the EEOC,” says Eden, and companies will need to have clear policies in place and adhere to them consistently. More employers will have to have interactive discussions with employees, an instance where in the past they might simply have wanted to distance themselves from a perceived problem employee. “It's not a discussion that most employers have had, or know how to have,” says Eden.

HR managers and employee assistance professionals (EAPs) will have to become more adept at handling certain scenarios, including what they can and cannot do in the area of prescription medication disclosure and how they should respond when an employee comes to them with a problem but doesn't admit to current substance use (current users are not protected under the ADA).

ADA amendments

The substance of the ADA Amendments Act, which Congress enacted in the fall of 2008, has been an important topic of discussion in the drug testing community in recent months. At a Feb. 23-25 Training Institute sponsored by the Substance Abuse Program Administrators Association (SAPAA), Eden will lead a session on the ADA Amendments Act's impact on drug and alcohol testing, sharing risk reduction strategies for employers as well as tips on interactive discussions with employees.

The amendments act was designed to reinstate broad protections under the ADA by rejecting several narrow U.S. Supreme Court interpretations of the term “disability.” The law will make it considerably easier for many individuals, including some with mental health-related impairments, to demonstrate that their condition meets the definition of disability under the ADA.

The 2008 act maintains the exclusion of individuals engaging in current illegal drug use from the ADA's protections. Eden says he has heard of no movement to alter that provision. Under the ADA, however, a person no longer engaging in illegal drug use can meet the definition of disability if he/she has successfully completed or is participating in a rehabilitation program.

Eden's belief that claims based on a perceived disability will increase shouldn't come as a surprise given the current enforcement environment. He has cited data showing that in fiscal year 2009, charges of workplace discrimination filed with the EEOC reached their second highest level ever. He quoted a recent comment from EEOC Acting Chairman Stuart J. Ishimaru: “Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.”

Eden adds, “Having the EEOC come after you is like the 800-pound gorilla.”