On 2/24/17, the 10th Circuit Court of Appeals affirmed summary judgment to an employer on ADA discrimination claims but reversed summary judgment for the employer on an unlawful disability-related inquiry claim. The case involved an employee who applied for Short Term Disability (STD) leave and advised the employer’s STD third party administrator (TPA) that he was requesting STD benefits for work-related stress and anxiety. The employee also told the TPA that he was experiencing withdrawal from Suboxone (a medication prescribed to replace OxyContin), and that this withdrawal was preventing him from working. The TPA told the employer that the employee had filed a disability claim for alcohol or substance abuse. The case is Williams v. FedEx Corporate Services (10th Cir. 2/24/17).
FedEx Alcohol/Drug Free Workplace Policy. FedEx had a substance abuse policy pursuant to which employees with substance abuse problems were required to contact an outside vendor for assistance in drug addiction and were also subject return-to-duty drug testing and placed in a follow-up drug testing program for five years. Failure to comply with the requirements of the policy was grounds for termination. The employee attempted to clarify to FedEx that he had not sought STD benefits for a substance abuse problem, and even submitted medical documentation stating that he had no substance abuse problem. However, based on the communication from the TPA -- FedEx insisted that the employee comply with the requirements of the substance abuse policy.
No ADA discrimination or hostile work environment. The employee asserted what the court referred to as a “traditional ADA claim.” He argued that FedEx discriminated against him for his severe anxiety and adjustment disorder by refusing to adjust his work schedule, berating him, threatening his job and interfering with his attempt to transfer to a different position. He also argued that FedEx subjected him to a hostile work environment. The court rejected these claims on the ground that the conduct the employee alleged was not sufficiently harsh to create a hostile work environment. The court also rejected the ADA discrimination claim because there was no evidence that FedEx managers even knew about his severe anxiety and adjustment disorder when the conduct occurred, and, therefore, the employee could not show that the poor treatment was causally related to his disability. In that regard, FedEx believed that he had been on leave for a substance abuse problem and not for anxiety.
No “regarded as” ADA liability. The court also rejected the employee’s argument that FedEx “regarded him” as a drug addict and discriminated against him on that basis. The court concluded that requiring the employee to pass a drug test before he could resume work and to remain in a drug testing program for five years constituted adverse actions. However, the court ruled in favor of FedEx on the ground that the communication from the TPA about a substance abuse problem provided FedEx with a legitimate nondiscriminatory reason for its actions. Specifically, FedEx showed that the TPA had advised it that the employee was taking leave due to substance abuse, and FedEx had then acted on a “good faith belief” that the employee suffered from substance abuse when it placed him in its drug testing program. The employee argued that he was not a drug addict and that both the TPA and FedEx were wrong. The court concluded that so long as FedEx believed in good faith that the employee had a substance abuse problem, it did not matter whether FedEx’s decision was “wise, fair or correct.”
Disability-related inquiry. The employee also argued that FedEx had violated the medical examination/inquiry provisions of the ADA. Under the ADA, an employer may not require a medical examination or make disability-related inquiries unless such examination or inquiry is shown to be job-related and consistent with business necessity. The employee argued that FedEx violated this provision when it required him to submit to monthly drug tests and to disclose his prescription medications. FedEx argued that a test for illegal use of drugs is not a medical examination under the ADA. The court acknowledged this point but emphasized that FedEx did more than require drug testing for illegal drug use. FedEx also required the employee to disclose his use of legally-prescribed medications. The court concluded that requiring disclosure of prescription drugs may violate the ADA. FedEx argued that it had a legitimate business reason for requiring disclosure of prescription medications –to ensure that employees who seek assistance for drug abuse or dependencies are no longer abusing the drug if they return to work at FedEx. The Court of Appeals remanded the case to the district court for further fact-finding on this argument.
Lessons for employers? Employers should be cautious about the extent to which they obtain and act upon medical information about employees from third party administrators of their disability programs in making personnel decisions. Here, the court shielded FedEx from liability on the ground that it was entitled to rely in good faith on the communication from its TPA – even if, apparently, this communication was not accurate. Employers also should be cautious about requiring employees to disclose certain medical conditions and legally authorized prescriptions. The ADA imposes limits on an employer’s ability to make such medical inquires and examinations.
