Federal Court Finds Employee’s Explanation for Failed Drug Test Insufficient to Provide Notice of a Disability

Most employers are well aware that, under state and federal disability laws, an employee with a disability is entitled to reasonable accommodations in the workplace.  What can sometimes be less clear for employers is determining at what point the obligation to provide a reasonable accommodation arises.  Not surprisingly, the answer often depends on the facts.

As a case in point, a federal district court recently held that an employee’s disclosure that he was taking oxycodone for his back pain was not sufficient to put the employer on notice that he had a disability or that he required an accommodation.  Angel v. Lisbon Valley Mining Co., LLC (D. Utah, Nov. 23, 2015).  The employee disclosed that he was taking oxycodone after he had failed a drug test. Although the employee told human resources that the medication was for a back impairment and provided them a copy of his prescription along with a physician’s note, the court found neither the prescription nor the doctor’s note was sufficient to notify the employer that he was claiming a disability or asking for an accommodation.  In this case, the court held that the employer’s mere awareness of the employee’s physical condition (i.e. back pain) was insufficient to show that it was aware of an alleged disability or a request for accommodation.

Although it is difficult to generalize from the facts of a particular case, the outcome in Angel nonetheless confirms that the duty to provide a reasonable accommodation is triggered only after an employee has put the employer on notice of a disability and a desire for an accommodation. Although an employee’s accommodation request can be in “plain English” and does not need to use any special words, it must still be sufficient to notify the employer that the employee needs a modification at work and that the modification is related to a medical condition.

Maine’s Law Court Blows the Whistle on McDonnell Douglas

Maine’s highest court has closed out the year with two notable decisions involving the state’s Whistleblowers’ Protection Act (WPA).  The decisions revise the method for analyzing WPA cases on summary judgment and, as a result, are likely to have impacts that are more procedural than substantive. 

When a party files a motion for summary judgment, they are essentially arguing that no factual dispute exists with respect to the key aspects of the case and that a court can therefore decide the case as a matter of law, without having to go to a trial.  In employment discrimination cases, courts have for years relied on a framework developed by the U.S. Supreme Court to determine whether or not a factual dispute exists that would prevent summary judgment from being awarded. The framework, known as McDonnell Douglas, generally sets out a procedure for presenting evidence of discrimination.  The procedure involves shifting burdens, where the employee must first establish a prima facie case of discrimination, which the employer must then rebut with an explanation as to why it had legitimate reasons for any actions it took.  Assuming the employer provides that explanation, the burden then shifts back to the employee to point to sufficient evidence in the record that would allow a jury to conclude that the employer’s conduct was nonetheless motivated, at least in some measure, by discrimination. 

In Brady v. Cumberland County (November 10, 2015) and Cormier v. Genesis Healthcare, LLC (December 15, 2015), the Law Court announced that it would no longer use the McDonnell Douglas framework for adjudicating WPA cases on summary judgment.  In brief, the Law Court noted that because of the way a WPA claim is defined under Maine law, an employee must produce evidence of causation—i.e. evidence that the employer had an unlawful motive for taking an adverse action—as part of his or her prima facie case.  This is in contrast to claims under Title VII, where employees are not required to produce evidence of causation until the third step of the McDonnell Douglas framework—after the employer has produced a legitimate non-discriminatory explanation for its actions. Noting this difference between the WPA and Title VII, the Law Court concluded that, for WPA cases, the second and third steps of the McDonnell Douglas framework are duplicative.  Consequently, rather than employing the McDonnell Douglas burden-shifting framework, the Law Court explained that when analyzing WPA cases on summary judgment, it will consider evidence in a “unitary way and simply determine whether the record as a whole would allow a jury to reasonably conclude that the adverse employment action was motivated at least in part by retaliatory intent.” 

In a sense, then, the Brady and Cormier decisions do not signal a significant change.  In WPA cases, employees and employers will still need to present the same evidence to prevail on summary judgment; the difference is that the Law Court will not go through the exercise (or require the parties to through the exercise) of sorting that evidence through a burden-shifting framework.  Instead, in a nod to judicial efficiency, the Court will simply consider all the evidence at once to determine whether there is sufficient evidence to suggest that an adverse employment action was motivated at least in part by protected activity.

Recent Decision Provides Case Study on Managing Suspected Alcohol Impairment

If an employer suspects that an employee may be coping with a substance abuse issue, such as alcoholism, what steps can it take to ensure that the employee is not coming to work impaired?  A recent federal court case explored this issue and found that an employer acted within the scope of the law when it required an employee to undergo a breathalyzer test for alcohol and, based on the results of that test, terminated the employee from his safety-sensitive position.

The employee in the case, Foos v. Taghleef Industries, worked with machinery that required him to follow several safety protocols to ensure his own safety and that of others.  During his employment, the employee went out on a number of FMLA-covered leaves.  When requesting to return from his last leave, his physician submitted a return to work note that identified his diagnosis as “acute alcoholic pancreatitis.”  Upon receiving the physician’s certification, a health and wellness manager became concerned that the employee might be consuming alcohol at work.  The concern was based on the employee’s history of pancreatitis (which the employer did not know was related to alcohol prior to the doctor’s certification), as well as information that the employee had been hurt in a bar fight (which resulted in one of the employee’s previous FMLA-covered leaves).  Based on these concerns in light of the employee’s safety-sensitive position, the company concluded that it had reasonable grounds to believe that the employee was coming to work impaired.  When the employee returned from work, the company therefore sent him to the hospital for a breathalyzer test.  The company then terminated the employee after his test came back positive.

Although the employee claimed that the alcohol test was unlawful under the ADA, the court concluded that, under these facts, it was reasonable for the company to inquire into whether the employee was able to perform his job.  The alcohol test was therefore “consistent with business necessity.”  Also bolstering the employer’s case was that it applied the same procedures any other time it suspected an employee was returning to work in an impaired condition.  In other words, there was no evidence that the company singled out this employee for treatment that was distinguishable from other employees.

Although this decision certainly provides some guidance as to the steps an employer can take to ensure an employee is not coming to work impaired, it is just that: a guidepost.  Each case – and each employee – must obviously be analyzed on an individual basis.

Second Circuit Upholds NLRB’s Views on Employee Social Media Use

Last year, the National Labor Relations Board held for the first time that “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  For a brief overview of this case, Three D, LLC, see our previous blog post here.

Now, the Second Circuit Court of Appeals has affirmed the Board’s decision. Although the Second Circuit issued its ruling as an unpublished summary order, which means that it does not have precedential effect, employers should not discount the effect that this ruling will have on the Board’s aggressively pro-employee agenda.

Three D argued on appeal that the Board incorrectly ruled that a discussion by a group of employees on Facebook was protected under the NLRA.  Although the discussion ostensibly related to the terms and conditions of employment, because it involved the issue of taxes and wages, the company argued that the employees crossed the line by incorporating obscene and disloyal comments into their discussion.  According to the company, the Board ignored the company’s legitimate interest in preventing the disparagement of its reputation, particularly where the employees’ Facebook discussion was viewable – and was in fact viewed – by customers.

The Second Circuit disagreed, however, finding that almost “all Facebook posts by employees have at least some potential to be viewed by customers” and that, even though customers did see the Facebook discussion at issue, the “discussion was not directed toward customers and did not reflect on the employer’s brand.”  Consequently, the employees’ comments – including the act of “liking” the comments – were protected and precluded the company from disciplining the employees.

The decision raises an important question for employers in the area of social media, which is:  when does an employee’s post “reflect on the employer’s brand?”  Here, even though the employees’ posts referenced the name of the company and alleged it had mismanaged its employees’ taxes, the comments were not found to reflect on the company’s brand.  The Second Circuit’s decision therefore suggests than an employee’s disparaging comments will have to be far more specific before losing protection under the Act, particularly where the comments arguably relate to terms and conditions of employment.  In other words, an employee’s online post does not become unprotected simply because it contains obscenities and is viewed by the company’s customers.  According to the Second Circuit, this conclusion simply reflects “the reality of modern-day social media use.”

NLRB Announces New Joint Employer Standard

In July of last year, the National Labor Relations Board released an advice memorandum directing regional offices to treat the franchisors and franchisees of McDonald’s as joint employers in a series of unfair labor practice cases pending throughout the country.  The memorandum, which was issued by the NLRB’s Office of General Counsel, did not carry the weight of law but nonetheless provided a strong indication of the Board’s future direction.

Last month, the Board took a major step in turning the advice in the July 2014 memorandum into actual law.  The Board held in a 3-2 decision that companies may be held to be joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.”  The Board’s decision in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015), overturns long-standing precedent that had found franchisors to be too far removed from the day-to-day decisions of franchisees to be considered joint employers.  In reaching their decision, the three members of the majority explained that the NLRB’s standards simply did not recognize the realities of today’s workforce in which far more contingent workers are employed by employment agencies.

The genesis of the Browning-Ferris dispute began in August 2013, when a regional director for the NLRB held that a Browning-Ferris subsidiary was not a joint employer of workers provided by a subcontractor under a labor services agreement.  The International Brotherhood of Teamsters appealed the regional director’s determination and the NLRB granted review.  In granting review, the Board explained that it intended to consider the continuing vitality of two of its cases from 1984.  In those two cases, the Board had announced a joint employer standard that required a showing that a joint employer exercised “substantial direct control” over an employment relationship.

The Board majority noted that the two 1984 cases were based on an earlier decision from the U.S. Court of Appeals for the Third Circuit, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc.  In that case, the Third Circuit had found that employers could be considered joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.”  Returning to the standard in that case, the Board majority found that, since 1984, the NLRB had improperly focused on “actual control” of workers in determining a joint employer status, rather than the common law principle that focuses on the “right to control” employees.

Under the new standard announced by the majority Board, companies may be considered joint employers if they are employers within the meaning of the common law (i.e. have the “right to control”) and they share or codetermine those matters governing the essential terms and conditions of employment.  Consequently, not only will evidence of direct control be relevant to determining joint employer status, but evidence of indirect or potential control over working conditions will also influence the determination.

New Social Media Privacy Law in Maine

Maine has a new Employee Social Media Privacy law that prohibits employers from requiring employees and job applicants to provide access to their social media accounts. In passing the law, Maine joins at least twenty other states with similar legislation. The new law goes into effect on October 15, 2015.

The Employee Social Media Privacy law follows previous efforts by the Maine Legislature to protect the privacy of social media accounts, which efforts we have summarized here and here. Under the newly enacted law, a social media account is defined as an account with an electronic medium or service through which a user creates, shares, and views user-generated content, including emails, videos, blogs, text messages, and other similar content. Expressly excluded from the definition, however, are social media accounts that are opened at the request of an employer, provided by an employer, or intended for use primarily on behalf of an employer.

In general, the new law prohibits employers from requiring employees and job applicants to provide access to personal social media accounts, and prohibits employers from taking adverse action against an employee or applicant who refuses to provide access. The law also specifically prohibits so-called “shoulder surfing,” or the practice of requiring an employee or applicant to sign into an account in the presence of the employer. In addition, employers may not require employees or applicants to disclose any personal social media account information, add any individuals to the employee’s or applicant’s list of social media contacts, or alter account settings that would affect the ability of third-parties to view the contents of an account. Employers found in violation of the law are subject to fines assessed by the Department of Labor.

The new law does provide some exceptions and does not, for example, apply to information about an employee or applicant that is publicly available, or restrict the ability of an employer to require the disclosure of certain information that the employer reasonably believes to be relevant to an investigation of employee misconduct or workplace violations. The Employee Social Media Privacy law also clarifies that nothing in the law prevents employers from implementing policies governing the use of employer-owned electronic devices and communication systems.

Going forward, employers should review their social media policies to ensure they are consistent with the Employee Social Media Privacy law. In addition, although the new law creates an exception for social media accounts that are created or used at the request of an employer, employers may need to revisit how such accounts are used and clarify the ownership in such accounts. Failure to do so may lead to complications, not only under the Employee Social Media Privacy law, but other privacy-related laws such as the federal Stored Communications Act.

Recent Decision Explores Issues of Mental Disability and Violence in the Workplace

A federal district court recently grappled with whether an employer’s termination of an employee for engaging in violent behavior was lawful, where the employee’s behavior was related to an underlying mental impairment.  Joining other courts, the district court found that the employer was justified in letting the employee go for unacceptable workplace behavior, even though the conduct may have resulted from her underlying conditions with anxiety and depression.

In Felix v. Wisconsin Department of Transportation, Felix was employed as a customer service agent and driving test proctor.  Her job involved both working behind a counter to process driver’s license applications, and administering road tests.  During her employment, Felix experienced anxiety at work that resulted in panic attacks.  Her employer accommodated these incidents by letting Felix take breaks to do breathing exercises and calm down.

The incident leading to Felix’s termination occurred after she suffered a particularly acute panic attack, when a supervisor found her lying on the floor and crying loudly while trying to speak.  She had visible cuts on her wrist and could be heard saying things like “everybody hates you” and “they want to get rid of you.”  After an ambulance arrived and Felix calmed down, she was moved to a break room.  The next day, Felix was informed that she would need to undergo an independent medical exam to determine whether she was fit to return to duty, as the DOT was concerned both for her own safety and the safety of applicants with whom she drove.  Ultimately, the medical examination concluded that Felix remained at increased risk for potentially violent behavior toward herself and others.  Based on those results, the DOT terminated her employment on the grounds that she was unfit for duty.

Affirming the DOT’s decision, the court determined that it was undisputed that Felix’s termination was due to her behavior, which led the DOT to determine she was unfit for duty.  The court noted that, absent a disability, the DOT would have been justified in terminating any employee who engaged in similar behavior.  Although Felix argued that the DOT was wrong in its assessment of her fitness for duty, the court explained that was beside the point:  the issue was not whether the DOT’s reliance on the medical report was wrong, but whether the DOT’s explanation for her termination was dishonest and pretext for terminating her because of a disability.  In short, the court found that the DOT was not required to tolerate Felix’s conduct, and that her termination was due entirely to unacceptable workplace conduct, not because of a disability.