Can employer require impaired employee to take medication?
Lexology
The EEOC says no. In a recent case, the EEOC filed suit against a paper company in Michigan over this issue. The employee had a seizure at work and was diagnosed with epilepsy. After a period of leave, the employee was released to return to work by his physician.
Wise employers now know the “tension”:
- The ADA says the employer must bring the employee back and provide reasonable accommodation, so long as the employee is not a risk to himself or to others.
- The standard is whether the employee poses a significant risk of substantial harm.
- The EEOC’s regulations also say the employer must have an interactive discussion with the employee about possible accommodations.
- In this case, the employer apparently was concerned about the employee working and having another seizure in a hazardous workplace, a typical concern in a manufacturing facility with large, sophisticated equipment.
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So, employer decides to have a written agreement with the employee requiring, among other things:
- The employee must take his anti-seizure medication; and
- The employee must do so “under observation.”
The EEOC has filed suit. It is not clear yet whether the EEOC is objecting to the “take your medicine” directive from the employer or only objecting to the “under observation” requirement. The EEOC interprets that requirement as meaning someone in the management team has to observe each work day the employee actually taking the medication.
This case is worth watching further. Here are some key points:
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Has the doctor provided a release for the employee to return to work safely only if the employee continues to maintain his regimen of treatment?
- Or, is the release not so conditional?
- If the release is conditional, it would appear the employer has a duty to require that the employee take his medication as a condition to returning to work.
- Yet, is that what the EEOC finds objectionable?
- Or, does the EEOC find objectionable only the requirement that the medicine be taken “under observation”?
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Interestingly, in its Complaint, the EEOC alleges that the employer has treated this employee differently than it treats its non-disabled employees.
- However, depending upon its nature, that differing treatment may actually be required by the ADA.
- The nature of the ADA’s “reasonable accommodation” requirement is that disabled employees are treated differently – i.e., more favorably – than non-disabled employees, so long as that more favorable treatment is “reasonable.”
With workplace safety concerns ever-present for employers, especially for manufacturers with workplaces containing inherent hazards, it will be interesting to see how this case unfolds.
EEOC Sues Neenah Paper for Disability Discrimination
JD Supra
Neenah Paper, Inc., a manufacturer of various types of premium paper with a paper mill in Munsing, Mich., violated federal law by discriminating against a production worker because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
According to EEOC's lawsuit, Neenah Paper discriminated against Kris Gauthier because of his seizure disorder. Gauthier was hired as a fourth hand laborer. After he had a seizure at work and was placed on a medical leave of absence, Neenah Paper would not allow Gauthier to return to work without confirmation from a physician that he no longer had his medical condition, EEOC said. Months later, in July 2013, Neenah Paper allowed Gauthier to return to his job on the condition that he take his medication at work under observation - either in the presence of the plant nurse or designated co-workers.
Is Mental Trauma the New School Burden?
Education Week
As if public schools were not already overloaded with responsibilities beyond teaching subject matter, a new lawsuit demands that they train teachers to identify and understand the effects that prior mental trauma has on their students' education ("Compton Unified fights a lawsuit over children's 'demons,' "Los Angeles Times, Aug. 20).
Public Counsel, a Los Angeles-based pro bono law firm, represents eight students in the Compton Unified School District who suffer from "complex trauma." The suit claims that the condition qualifies as a disability under the Americans with Disabilities Act. As a result, the district has failed to provide special academic and mental health services to these students. The district does not dispute that the plaintiffs have suffered trauma, but it maintains that none of them now has a physical or mental impairment.
What employers can (and can't) do to protect you
Indianapolis Star
Employers must walk a fine line in warning workers about possible threats from disgruntled former employees like Vester Flanagan, who shot two TV news reporters in Roanoke, Va.
An employer who has a reasonable expectation that an employee may be violent, yet fails to act, could find itself liable if that employee lashes out, legal experts told The Indianapolis Star. But without such knowledge, there is often little a company can do.
When is a dog a service dog? It can be hard to tell
Napa Valley Register
Some Napa Valley businesses have “no pet” policies, but if you walk into one of those businesses and see a person with a dog, don’t rush to judge. The dog, such as Jessica Hanaghan’s pooch Noble, may be on duty.
A compromise can solve state's plague of disability lawsuits
Sacramento Bee
Not enough progress on 25th anniversary of Americans with Disabilities Act
Consumer Attorneys and California Chamber are joining forces behind bill
Measure is designed to protect businesses from shakedowns and encourage them to improve access