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What’s Trending On The CORSA HR Help Line

Jeffrey A. Stankunas, Esq.Julia R. Baxter, Esq.ISAAC, WILES, BURKHOLDER & TEETOR, LLC

614-221-2121jstankunas@isaacwiles.comjbaxter@isaacwiles.com

Reasonable Suspicion Drug Testing Of Employees

Statistics

• Cocaine, Marijuana, and Heroin are the most widely accessible and abused illegal drugs in Ohio.

• There were 110,851 admissions to Ohio alcohol and drug rehabilitation programs in 2009. The primary abused substance was Marijuana, followed by alcohol with a secondary drug, than alcohol alone. 62.6 percent of all those admitted were men and 37.4 percent were women.

• From 1999 to 2010, Ohio’s death rate due to accidental drug poisonings increased 372%, and the increase in deaths has been driven largely by prescription drug overdoses. www.usdrugtrends.com

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Statistics

• Between 6 and 8 percent of workers use drugs or alcohol on the job. • Compared with the average employee rates, a typical drug or alcohol

abuser is:• 2 times more likely to request early dismissal or time off;• 3 times more likely to be late for work;• 3 times more likely to injure themselves or another person in a

workplace accident; and • 5 times more likely to file a workers compensation claim.

Reasonable Suspicion Drug Testing Of Employees

• Search and Seizure under 4th Amendment– Risk to public safety for

suspicionless testing – Individualized reasonable

suspicion of drug use

Individualized Reasonable Suspicion • Factors that may affect the reasonableness of the suspicion are:

1) the nature of the tip or information;2) the reliability of the informant;3) the degree of corroboration; and4) other facts contributing to suspicion or lack thereof.

Copeland v. Philadelphia Police Dep’t, 840 F.2d 1139 (3rd Cir. 1988).

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Individualized Reasonable Suspicion • American Federation of Gov’t Employees v. Martin,

969 F.2d 788 (9th Cir. 1992)– Upholding policy which provided for reasonable suspicion testing

for off-duty drug use based on observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug.

Identifying An Employee Who Uses Alcohol or Abuses Drugs

Individualized Reasonable Suspicion (Interpersonal Skills) • Overreacts to real or imagined criticism • Wide swings in morale• Borrows money from co-workers• Avoids old friends or colleagues• Complains constantly• Avoids supervisor, especially after lunch and breaks• Makes unreliable or untrue statements

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Individualized Reasonable Suspicion (Attendance)• Unauthorized leave• Excessive sick leave• Poor punctuality • Monday absence/Friday absence• Leaving work early• Peculiar or increasingly improbable excuses for absences• Higher rate of absenteeism than other employees for colds, flu, gastritis, etc.

Individualized Reasonable Suspicion (On-the-Job Absences)• Away from job unnecessarily • Frequent trips to water fountain or bathroom• Long coffee breaks or smoke breaks • Physical illness on the job

Individualized Reasonable Suspicion (High Accident Rate)• Accidents on the job • Frequent trips to the medical/occupational health department

• Accidents off the job, but affecting performance • Accidents with equipment

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Individualized Reasonable Suspicion (Lower Job Efficiency) • Misses deadlines • Improbable excuses or bad decisions • Lower output and carelessness • Overly dependent on others

Individualized Reasonable Suspicion (Sporadic Work Pattern) • Alternative periods of very high and very low productivity • Variable work quality• Needing constant supervision or extra help

Individualized Reasonable Suspicion (Communication) • Less communications than in the past • Unclear or imprecise communications • Argumentative with co-workers and supervisors • Complaints from co-workers or customers

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Individualized Reasonable Suspicion (Difficulties in Concentration/Confusion) • Work requires great effort • Job takes more time• Forgetful• Neglects details• Difficulty in handling complex assignments• Hands shake when concentrating • Daydreams frequently• Difficulty analyzing or synthesizing information

Specific physical symptoms: what to look for

Cocaine: what to look for

Excitability, anxiety, nausea, hallucinations, dilate pupils, nasal congestion, excessive talking, weight loss, excessive trips away from work area, mood swings causing friction with co-workers, cost of cocaine can lead to other illegal activities.

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Marijuana: what to look for

Apathy, drowsiness, low productivity, reduced concentration and coordination, laughter, relaxed inhibition, increased appetite and weight gain, dilated pupils, red eyes.

Heroin: what to look for

Euphoria, drowsiness, insensitivity to pain, nausea, vomiting, watery eyes, runny nose, tiny pupils, needle marks on arms, needles, drowsiness, low productivity, excessive absences.

Methamphetamine: what to look for

Anxiousness, paranoia, delusions, sudden mood swings, jittering, twitching, rapid weight loss, lack of appetite, aggressiveness.

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Prescription Pain Killer Abuse: what to look for

Shifts in energy, mood, and concentration, personal hygiene may diminish, constant cough, runny nose and red glazed eyes, neglects responsibilities and becomes forgetful.

Alcohol: what to look for

Smell of alcohol on clothes or breath, intoxicated behavior, stumbling gait, glazed eyes, drowsiness, coordination difficulties, hangover.

Document Individualized Reasonable Suspicion

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Document Individualized Reasonable Suspicion • Identify in writing the job performance indicators and/or other

behaviors observed.• Document in writing specific dates, times, and witnesses, etc.• Use descriptive language, avoid non-descriptive language:

– “He was loud and disruptive.” (Non-descriptive)– “He yelled obscenities at his coworkers and abruptly pushed boxes

of materials off the shelf and onto the floor.” (Descriptive)

Individualized Reasonable Suspicion (Case Study #1)One of your employees shows up an hour late with a suspicious excuse about why he was late. He avoided you and would not make eye contact with you when you tried to speak with him. Two co-workers come to you several minutes after the employee starts working to report that the employee is acting wired and hyper. One of the co-workers states the employee seems to be high on something.

Should you send the employee for a drug test?

Individualized Reasonable Suspicion (Case Study #2)You learn that eighteen days ago, one of your employees has been arrested for trespassing at what the arresting officer’s report described as a “known drug location.” Contrary to your work rules, the employee did not report his arrest. He admitted to the arrest only after you confronted him about it.

Should you send the employee for a drug test?

Nocera v. New York City Fire Com’r, 921 F.Supp. 192 (S.D.N.Y. 1996).

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Individualized Reasonable Suspicion (Case Study #3)You receive an anonymous letter that one of your employees has been dealing marijuana. The letter does not provide any specific facts. You are unable to discover who sent the letter.

Should you send the employee for a drug test?

See Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989).

Is Illegal Drug Use A Protected Disability? An individual who is currently engaging in the illegal use of drugs is not an“individual with a disability” under the Americans with Disabilities Act(“ADA”) when the employer acts on the basis of such use.

So an employer may discharge current illegal drug users, on the basis ofsuch drug use, without fear of being held liable for disabilitydiscrimination.

However, an employer may not discriminate against a drug addict who isnot currently using drugs and who has been rehabilitated, because of ahistory of drug addiction.

Is Illegal Drug Use A Protected Disability? "Current" drug use means that the illegal use of drugs occurred recentlyenough to justify an employer's reasonable belief that involvement withdrugs is an on-going problem. It is not limited to the day of use, or recentweeks or days, in terms of an employment action. It is determined on acase-by-case basis.

If an individual tests positive on a test for the illegal use of drugs, theindividual will be considered a current drug user under the ADA where thetest correctly indicates that the individual is engaging in the illegal use of acontrolled substance.

See Chapter VII, Section 8.2-8.3 of EEOC’s Technical Assistance Manual:Title I of the ADA.

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Is Alcoholism A Protected Disability? An alcoholic is a person with a disability under the ADA and may beentitled to consideration of accommodation, if s/he is qualified to performthe essential functions of a job. However, an employer may discipline,discharge or deny employment to an alcoholic whose use of alcoholadversely affects job performance or conduct to the extent that s/he is not"qualified.“

See Chapter VII, Section 8.4 of EEOC’s Technical Assistance Manual: TitleI of the ADA.

Is Alcoholism A Protected Disability? For example: If an individual who has alcoholism often is late to work or isunable to perform the responsibilities of his/her job, an employer can takedisciplinary action on the basis of the poor job performance and conduct.However, an employer may not discipline an alcoholic employee moreseverely than it does other employees for the same performance or conduct.

See Chapter VII, Section 8.4 of EEOC’s Technical Assistance Manual: TitleI of the ADA.

Does The FMLA Protect Drug and Alcohol Abusers? Substance abuse may be a serious health condition under the Family and Medical Leave Act (“FMLA”).

However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider.

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Does The FMLA Protect Drug and Alcohol Abusers? On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.

Treatment for substance abuse does not prevent an employer from taking employment action against an employee.

However, the employer may not take action against the employee because the employee has exercised his or right to take FMLA leave for treatment. 29 C.R.F. §825.119.

Mental Health Issues in the Workplace

Statistics – Mental health conditions are the second leading cause of workplace

absenteeism (American Psychiatric Association, 2005)

– Mental health problems led to 156 million visits to doctors’ offices, clinics and hospital outpatient departments in 2005, making it one of the top 3 reasons why Americans seek medical treatment (Agency for Healthcare Research and Quality, 2008).

– Mood disorders are estimated to cost more than $50 billion per year in lost productivity and result in 321.2 million lost workdays (Kessler et al., 2006. Prevalence and effects of mood disorders on work performance in a nationally representative sample of U.S> workers. American Journal of Psychiatry)

– In a typical workplace with 20 employees, four will likely develop a mental illness this year. (National Institute of Mental Health, 2004)

– Depression is associated with a 50% increase in missed worked days. But early and proper treatment of it is associated with a marked decrease in disability leave time. (Journal of Occupational & Environmental Medicine, 2005)

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Statistics – As many as 8 million Americans who have serious mental illnesses do not

receive adequate treatment each year (Harvard University, 2002)

– The treatment success rates for such disorders as depression (more than 80%), panic disorder (70-90%) and schizophrenia (60%), surpass those of other medical conditions, such as heart disease (45-50%). (National Institute of Mental Health, 2004)

– Depression results in more days of disability than chronic health conditions such as heart disease, hypertension, and diabetes (National Committee for Quality Assurance, 2004).

– An estimated 2.5 million Americans have bipolar disorder. The actual number may be 2-3x higher because as many as 80% of people with this illness go undiagnosed or misdiagnosed. (National Mental Health Association, 2003)

Common Mental Illnesses• Depression

• Anxiety disorders

• Bipolar disorder

• ADD/Attention deficit hyperactivity disorder

(ADHD)

Depression

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Facts

• Depression involves a persistent lowering of mood, severe despondency and dejection.

• This is the most costly health condition.

Symptoms– Persistent sadness, anxious, or “empty” mood

– Sleeping too little, early morning awakening, or sleeping too much

– Reduced/increased appetite or weight gain

– Loss of interest in activities once enjoyed

– Restlessness, irritability

– Persistent physical symptoms that don’t respond to treatment (headaches, chronic pain, digestive disorders)

– Difficulty concentrating, remembering or making decisions

– Fatigue or loss of energy

– Feeling guilty, hopeless or worthless

– Thoughts of suicide or death

Anxiety Disorders

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Facts

• Anxiety disorders are the fifth costly health condition.

• These disorders are exaggerations of our normal and adaptive reaction to fearful or stressful events.

• Types of disorders include panic disorder, agoraphobia, posttraumatic stress disorder and obsessive-compulsive disorder.

Symptoms– Constant worries running through your head

– Feeling like you anxiety is uncontrollable

– Intrusive thoughts about things that make you anxious

– Inability to tolerate uncertainty

– Pervasive feeling of apprehension or dread

– Inability to relax

– Putting things off because you feel overwhelmed

– Having muscle tightness or body aches

– Feeling edgy, restless or jumpy

– Stomach problems, nausea, diarrhea

Bipolar Disorder

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Facts

• Bipolar disorder is what was previously referred to as manic depression.

• It affects the normal functioning of the brain so that the person experiences extreme moods – mania and depression.

• People may also experience psychosis in the manic and/or depressed phase.

Symptoms– Depressed mood, loss of interest or pleasure

– Inability to concentrate

– Suicidal ideation (recurrent thoughts of death)

– Decreased energy, tiredness and fatigue

– Sense of worthlessness or guilt

– Changes in appetite

– Changes in sleep pattern

– Thoughts racing

– Manic speech (speech is pressured, loud, rapid and difficult to interrupt, may talk non-stop for hours on end and without regard for others’ wishes to communicate)

– Increased physical mobility and energy

– Recklessness (spending sprees, driving fast, walking on roads)

ADD/Attention Deficit Hyperactivity Disorder (ADHD)

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Facts

• ADD (attention deficit/hyperactivity disorder)/ADHD is a mental health condition exhibited by difficulty maintaining attention, as well as hyperactivity and impulsive behavior.

• It always starts in early childhood.

Symptoms

– Disorganization

– Failure to meet deadlines

– Inability to manage workloads

– Problems following instructions from supervisors

– Tendency to overlook details

– Poor listening skills

– Hard time following directions

Effects on Workplace Environment

– Negative impact on team work and cooperation

– Heavier workloads for coworkers

– Distraction of coworkers

– Problems with morale

– Increase in workplace errors, accidents and injuries

– Illegal activities at work including drinking and selling illicit drugs compromise other employees

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What to do When You Suspect an Employee has a Mental Health Issue

The Americans With Disabilities Act (ADA)

The ADA prohibits discrimination against a qualified individual with a disability in regard to job application procedures, hiring, or discharge of employees. 42 U.S.C. §12112(a).

Elements

One who claims employment discrimination on the basis of a disability must show

• (1) that the plaintiff is a qualified individual with a disability;

• (2) that the plaintiff can safely and substantially perform the essential functions of the job; and

• (3) that the discriminatory action was taken at least in part because of the plaintiff’s disability.

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Qualifications

To qualify as “disabled” under the ADA, a person must suffer from a mental or physical impairment that substantially limits one or more major life activities.

Reasonable Accommodation

A reasonable accommodation is any change in the work environment to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

Questions to consider

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QuestionAn employee of the City of Columbus has been diagnosed with major depression, and applied for 12 weeks of Family Medical Leave. You, the employer, granted the leave. However, the employee came back to work before the end of her leave, and requested an additional 3 months of unpaid leave, without any documentation from her physician. You, the employer, denied the request and told the employee to return to work after her 12 weeks of leave had expired. The employee came back again and supported her request with a letter from her physician which stated that she would be able to return to work in three to six months. Should the employer grant her the requested leave as a reasonable accommodation?

AnswerYes. Whether a leave request is reasonable turns on the facts of the case, but a number of courts have recognized that leave of absence for medical treatment may constitute a reasonable accommodation under the ADA. Further, “reasonable accommodation is a ‘continuing’ duty and is not exhausted by one effort.”Shannon v. City of Philadelphia, No. CIV.A. 98-5277, 1999 WL 1065210, at 5-6 (E.D. Penn. 1999). In Shannon, the district court denied summary judgment for the employer because a jury could find that additional time for medical treatment was a reasonable accommodation.

QuestionAn employee with a host of psychological disorders worked for an airline. She initially worked night shift duty, but lack of sleep aggravated her psychological conditions (depression and anxiety disorder). After she spoke with a psychologist, she asked her employer to accommodate her condition by reassigning her to a daytime shift. She presented her psychologist’s documentation to the employer, who refused to transfer her to the day shift and suggested that she quit her job. The employer feared that if he allowed her to transfer, then other employees would begin to request transfers, too. What should the employer do, if anything, to reasonably accommodate her?

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Answer

Determine whether there was an open position in the day-time shift; see whether any employee wanted to take the night shift; offer an alternative reasonable accommodation.

Fitness for Duty Examinations

The ADA specifically permits medical examinations (a.k.a. fitness for duty examinations) of current employees when such an examination is shown to be job-related and consistent with a business necessity. 42 U.S.C. §12112(d)(4).

The ADA StandardThe ADA standard is as follows:

• For an employer’s request for a medical exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee’s behavior cannot merely be annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can ‘perform job-related functions.’ Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)

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Examinations• If you decide to have the employee take the exam, you can

require the employee to be examined by a doctor of your choice who has expertise in diagnosing and treating mental illness. The medical examination must be limited to determining whether the employee can perform his job without posing a direct threat, with or without reasonable accommodation.

• All information obtained through the medical examination shall be treated as a confidential medical record. Supervisors and managers, however, may be informed of the information regarding necessary restrictions on the work or duties of the employee and necessary accommodations. 29 C.F.R. § 1630.14(c)(1)(i)

Involuntary Disability Separation

• An appointing authority may involuntarily separate a classified employee if he is unable to perform the essential functions of his position because of a disability. O.A.C. §123:1-30-01(A). Ohio law requires a pre-separation hearing before involuntarily separating an employee. The employee must receive written notice of the hearing more than 72 hours in advance. O.A.C. § 123:1-30-01 (C).

Involuntary Disability Separation Continued • An appointing authority shall request that an employee

submit to a medical or psychological examination prior to the involuntary disability separating the employee unless:

• (1) the employee is hospitalized at the time such action is taken,

• (2) the employee has exhausted his or her disability leave benefits, or

• (3) substantial credible medical evidence already exists that documents the employee’s inability to perform the essential job duties.

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Bad Behavior on the JobAn employee cannot be targeted for discipline based upon his disability. However, a disability does not exempt an employee from discipline should he break workplace rules prohibiting harassment, insubordination, workplace violence, etc. This is because employers may distinguish between a discharge on the basis of misconduct and one based upon disability. Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir. 1995).

Bad Behavior on the Job ContinuedThus, employers may terminate employees for misconduct, “irrespective of whether the employee is handicapped.” Marrari v. WCI Steel, 130 F.3d 1180, 1183 (6th Cir. 1997).

Questions

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