Before getting started on the blog entry of the day, I wanted to point out that the White House issued a memorandum detailing how agencies should go about Internet accessibility. The document, which can be found here, is basically a best practices guide for executive agencies with respect to their Internet sites. Of particular note, is a reiteration of §508 and also a mention that WCAG 2.1 must be looked at as well. Also, next week I will be traveling all week (in the first part of the week, I will be speaking at the Minnesota Continuing Legal Education Bankruptcy Institute in Minneapolis, Minnesota on working with disabled clients and disabled attorneys. In the second part of the week and through the weekend, it’s parents weekend at my daughter’s college. So, I will try to get a blog entry done over the weekend for next week. If not, I will skip blogging next week and be back the following week).
The blog entry of the day is EEOC v. Army Sustainment, LLC, a decision from the Middle District of Alabama decided on September 26, 2023, here. The case involves an Army contractor that had a policy prohibiting the use of certain prescription drugs regardless of whether those drugs were properly prescribed and were compensating for people’s disabilities. There is a lot to unpack in this decision, and I wouldn’t be surprised if it gets appealed to the 11th Circuit. The 11th Circuit is very friendly to persons with disabilities. As usual, the blog entry is divided into categories and they are: facts; just when does the statute of limitations begin to run; whether an adverse action exists; whether the regarded as claims can go forward; pretextual; whether the failure to accommodate claims can go forward; disparate impact or disparate treatment; whether the interference claims can go forward; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. As a way of attacking the blog entry, you would probably be perfectly okay if you focused on the categories outside of the facts section and then referred back to the facts section as needed. Of course, you could also go in order as well if you prefer that. You definitely will want to read the thoughts/takeaways section for sure.
Facts (a bit lengthy but unavoidable; taken directly from opinion)
AFS was the primary helicopter maintenance contractor at Fort Rucker (now known as Fort Novosel) from 2003 to 2018 and employed thousands of aircraft mechanics, technicians, and other aviation specialists at that location. In 2012, AFS implemented an “Alcohol and Drug Free Workplace Procedural Guide 2501” that set forth policies and procedures related to employee drug use. Under this policy, AFS drug tested employees in safety-sensitive positions1 for a variety of drugs, 2 including opioids, amphetamines, and benzodiazepines.3 (See Doc. 169-7 at 8, 12.) Under the February 2016 version of the policy, with respect to prescription medications, employees were required to “report medications to the AFS Office of Occupational Health [OHD] when these prescriptions may affect their ability to safely perform their duties.” (Doc. 169-37 at 7.) AFS’s drug policy stated that “[c]ertain prescription medications may be unsafe for use during work hours but are acceptable for use during off duty hours while other prescription medications have been deemed inappropriate for use at all for employees in a safety sensitive 1 According to AFS, the determination of which positions were classified as “safety-sensitive” was based on an “interactive process with the Government Flight Representative (GFR), who represented Army’s interests regarding flight operations at Ft. Rucker.” (Doc. 153 at 19 (citing Doc. 153-56).) 2 This is referred to as the “9-Panel.” 3 It is undisputed that these substances have both illegal and prescription applications. 4 environment” such as “pain killers with narcotics, anti-depressants, and prescription diet medications.” (Id.)
In February 2016, AFS made two major changes to its drug policy that are the subject of the current dispute. First, prior to 2016, AFS employed a “6-to-8 Hour Rule” for employees in safety-sensitive positions who were legally prescribed 9- Panel medications. Under this rule, AFS’s in-house OHD could independently clear an employee with a prescription 9-Panel medication to return to work so long as the employee agreed in writing that they would not take their medication within 6-to-8 hours before their shift. According to AFS, employees who submitted to this written agreement were rarely required to be cleared for work by outside medical professionals. In February 2016, AFS eliminated the 6-to-8-hour rule and instead required employees to undergo a medical evaluation with an outside Occupational Medical Provider (OMP) to determine whether an employee’s prescription medication was appropriate for use during work hours. (Id.)
Second, as part of the medical evaluation process, employees prescribed medications “that may affect [their] ability to safely perform their job duties”— including 9-Panel medications—were sent to an OMP to discuss alternative medications “for any medication deemed to be a risk to the employee and/or the workplace.” (Id. at 12.) As part of this prescription medication review process, AFS directed the OMPs to send a “Safety Sensitive Letter” to the employee’s prescribing 5 doctor to confirm whether the employee was stable on their safety-sensitive medication or whether alternative medications were available that were as effective. If the prescribing doctor indicated that no alternative medications were available, the OMPs had to determine whether the employee could safely work while taking the medication in question. The policy additionally provided that “[e]mployees determined unable to work within the parameters of the Alcohol and Drug Free Workplace Policy will be deemed disabled and therefore eligible to apply for benefits IAW the short-term disability plan.” (Id. at 10.)
In November 2016, two AFS employees—Paul Nolin and Winston Mervin Simmons—filed charges of discrimination with the EEOC alleging that AFS’s revised prescription drug policy discriminated against them because of their disabilities.
After receiving Simmons’s and Nolin’s charges of discrimination, the EEOC launched an investigation to determine whether AFS engaged in unlawful 8 discrimination in violation of the ADA. As a result of its investigation, the EEOC found reasonable cause to conclude that AFS violated the ADA by not allowing the charging parties and a class of individuals “to continue to work or return to work while taking their disability-related medications” that were prohibited under AFS’s alcohol and drug policy, and by failing to engage in the interactive process. (Doc. 153-49 at 23.) Furthermore, the EEOC determined that AFS’s alcohol and drug policy constituted a blanket policy using impermissible qualification standards that “have the effect of discrimination on the basis of disability” in violation of the ADA. (Id.) On April 6, 2020, the EEOC filed suit after conciliation efforts with AFS failed
Due to the revised AFS policy, approximately 72 AFS employees underwent medical evaluations regarding their prescription medications. Of those 72 employees, the EEOC brought this action on behalf of 17, including: Amber Ficquette Cottrell, Azeala Hutchinson, Heath McElveen, Marcus Rich, Mark Blinn, Matthew Black, Winston Mervin Simmons, Michael Sanders, Paul Nolin, Richard Johannes, Rick Skinner, Rickey Helmes, Rickey Sego, Sabra Distasio Kelley, Tammy Bright Hudson, Tammie Johannes, and Timothy Murray. The group’s disabilities include conditions such as chronic pain, anxiety, post-traumatic stress disorder (PTSD), and attention-deficit/hyperactivity disorder (ADHD). (See 9 generally Docs. 169-1 through 169-17.) All of these individuals were legally prescribed 9-Panel medications and were required to undergo medical evaluations with OMPs to be cleared to return to work. According to the EEOC, these individuals were prescribed medications to treat or manage their underlying disabilities yet were told by the OMPs that their prescription medications were prohibited under AFS’s drug policy, and thus, they could not return to work while using these medications.
Despite expressing their desire to continue using their prescription medications, some of these individuals agreed to stop taking them because they feared they would face forced unpaid leave or employment termination. (See, e.g., Doc. 169-4 at 3; Doc. 169-5 at 5; Doc. 169-7 at 3–4; Doc. 169-8 at 5; Doc. 169-11 at 4; Doc. 169-14 at 5; Doc. 169-17 at 6–8.) Some of them were also forcibly placed on unpaid leave, including Matthew Black, Mark Blinn, Heath McElveen, and Marcus Rich.
The OMPs ultimately cleared Matthew Black, Heath McElveen, and Paul Nolin to return to work while using their prescription medications for ADHD, but they were not permitted to continue using other prescription medications. (See Doc. 155-9 at 12, 15; Doc. 155-10 at 1–2, 11; Doc. 155-26 at 9.) Mark Blinn was allowed to continue taking his prescription medication (Vicoprofen) to treat his chronic pain 10 condition so long as he took FMLA leave when using it during work hours. (See Doc. 155-12 at 51.)
In some instances, when an employee was not cleared to return to work while using certain prescription medications, before AFS’s in-house OHD would clear the employee to return to work, the employee was required to sign a “Results of Rx Medication Review” form acknowledging that their prescription medication was “deemed inappropriate for use in a safety sensitive work environment” and that they could be subject to disciplinary action, including termination, if found to be taking their prohibited medications in the future. (See Doc. 155-10 at 2; Doc. 155-26 at 12; Doc. 155-19 at 1; Doc. 155-21 at 10; Doc. 155-25 at 3; Doc. 155-26 at 12.)
Just When Does the Statute of Limitations Begin to Run
- In non-deferral states, which includes Alabama (Georgia too for that matter), the claimant has to file a charge with the EEOC within 180 days of the date of the alleged discrimination.
- The general trend among district court decisions is that the EEOC cannot pursue claims arising outside the charging period even when those untimely claims are related to otherwise timely claims.
- Each person the EEOC brings a claim on behalf of has to fall within that 180 day timeframe. To hold otherwise, would permit the EEOC to destroy all principles that go along with a statute of limitations and force employers to defend against zombie like claims from the distant past.
- The statutory plain language requires a charge to be filed with 180 days of when the alleged unlawful employment practice occurred. It also talks about damages for back pay not accruing from the date more than two years prior to the filing of a charge.
- Failure to accommodate claims are discrete acts, and so the continuing violation doctrine is not applicable. Same can be said, i.e. discrete acts, for the placing of employees on unpaid leave until they were cleared to return to work.
- Either of the two claims filed by the lead plaintiffs activates the statute of limitations.
Whether An Adverse Action Exists
- An adverse employment action is one that impacts the terms, conditions, or privileges of a plaintiff’s job in a real and demonstrable way.
- In other words, an employment action must have a serious and material change in the terms, condition, or privileges of employment in order to be actionable.
- Whether the employer’s conduct constitutes an actionable adverse employment action under the ADA is determined by whether a reasonable person in the plaintiff’s position would view the employment action in question as adverse.
- The EEOC has not shown how merely being required to cease use of certain prescription medications, without more, is sufficiently adverse to be actionable.
- The EEOC has shown that the people placed on involuntary unpaid leave did suffer an actionable adverse employment action.
- The EEOC has not shown how the directive to cease using certain prescription medications had a tangible adverse effect on the claimants employment. After all, several people continued working in the same positions even after agreeing to no longer take the prescription medications, and there is no evidence that any of those were terminated, demoted, disciplined, or missed out on advancement opportunities as a result of that action.
- Neither signing a form nor fear of termination are sufficient to constitute an adverse employment action.
- The impact of stopping prescription medications is insufficient to support a discrimination claim.
- Unpaid leave does constitute an adverse employment action since it directly impacts an employee’s compensation.
Whether the Regarded As Claims Can Go Forward
- The regarded as prong of the ADA is dispositive in this case. Under that prong, a person is regarded as having a disability when that individual has been subjected to an action because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In other words, the question is whether the employer took adverse action against an individual because of an actual or perceived physical or mental impairment.
- Forcing people on unpaid leave based on a belief that the prescription medications could (emphasis in opinion), interfere with their ability to safely perform their work duties satisfies the regarded as prong.
- The evidence is sufficient to meet the regarded as definition especially considering the policy that provided employees deemed unable to work on the policy are disabled and therefore able to apply for short-term disability benefits.
- In a footnote, the court notes that the employer treated prescription medication as a proxy for unsafe work performance without any evidence that any of those individuals could actually perform their job duties while taking their prescribed medications.
- The weight of persuasive authority clearly leans in the EEOC’s favor with respect to cases concluding that plaintiff can show they were regarded as having a disability when their employers restricted or prohibited them from working based upon the employer’s perception that their prescription medications limited their ability to work.
- By the employer claiming it was accommodating claimants because of the prescription medication use, they implicitly concede that its actions were motivated by the claimants disabilities.
- While it is true that prescription medication usage does not mean necessarily that a person is a person with a disability, it is not disputed that these particular claimants took the medication because of their disabilities and that the employer’s forced leave was necessarily and inextricably tied to their respective conditions.
Whether The Failure to Accommodate Claims Can Go Forward
- According to the district court judge, the 11th Circuit in Beasley, which we discussed here, holds that discrimination in the form of a failure to reasonably accommodate is actionable only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, condition, and privileges of employment. So, the EEOC has to show that a person suffered an adverse employment action as a result of the failure to accommodate. The EEOC has not done that, with the exception of those put on unpaid leave.
- Triggering an employer’s duty to provide a reasonable accommodation means the employee makes a specific demand for an accommodation and demonstrates that such an accommodation is reasonable.
- In failure to accommodate cases, the burden is on the employee to: 1) identify, at least in broad strokes, the limitations their mental or physical condition imposes; and 2) link their disability to their requested accommodation by explaining how the requested accommodation alleviates the workplace challenges posed by his specific disability.
- Employees must give employers enough information to respond effectively to an accommodation request.
- At a minimum, an employee must request some change or adjustment in the workplace and must link that request to his disability, rather than simply presenting the request in a vacuum.
- A person telling the employer that they have to speak to their doctor before agreeing to stopping the medication is not an accommodation request, absent a generous interpretation, and even so there was no evidence how the accommodation request would address the limitation presented by his disabilities.
- The EEOC has failed to sufficiently show that the four remaining claimants made specific demands for an accommodation and demonstrated that such accommodations were reasonable to alleviate the workplace challenges posed by their specific disabilities.
Disparate Impact or Disparate Treatment
- The EEOC’s screen out claims are disparate impact claims.
- Both disparate impact and disparate treatment are permissible theories under the ADA.
- Courts must carefully distinguish between disparate treatment claims and disparate impact claims because the factual issues and the character of the evidence presented differ when the claims are based upon a facially neutral employment policy having a discriminatory impact on protected classes.
- The EEOC specifically alleges that the policies have the effect of discrimination on the basis of disability and the effect of depriving a class of qualified individuals with disabilities from equal employment opportunities, etc. So, it appears that the EEOC is alleging that the employer’s impermissible screening standard claims are disparate impact claims given its emphasis on the effect of the employer’s policy on people with disabilities.
- In order to succeed on a disparate impact claim, a plaintiff has to show that a facially neutral employment practice has a significant discriminatory impact on a single group of people.
- Further, establishing a prima facie case of disparate impact means a plaintiff have to provide comparative evidence showing that a policy has a disparate impact on people with disabilities.
- The EEOC did not present any statistical evidence that the drug policy had a disparate impact on people with disabilities.
- The EEOC cannot show that anybody was actually screened out from their job because it is undisputed that none of the claimants were terminated or that the employer failed to hire any of them as a result of the drug policy.
- To the extent that the EEOC argued that an ultimate employment action is not required in order to sustain a screen out claim, it did not like the fact cite any binding authority to support that argument or any factually similar persuasive authority.
Whether The Interference Claims Can Go Forward
- Employer failed to acknowledge that an ADA interference claim is a separate cause of action distinct from an ADA discrimination claim.
- The 11th Circuit has not had the occasion yet to explain the proper standard for evaluating ADA interference claim. Some courts have looked to the Fair Housing Act. The court also mentions Frakes, which we discussed here, as another possibility for how to prove up interference claims. The employer’s attorneys had ample time to address the interference claim and simply did not do it, so summary judgment is not warranted.
- The DOJ has made it quite clear that forcing people to stop taking their medication in order to participate in programs and activities of governmental entities violates the ADA. See this blog entry. I see no reasons why those same arguments would not hold in the title I context. Of course, the EEOC is a different thing than the DOJ. However, the DOJ does have the authority over cases involving employees of nonfederal governmental entities, which means that non federal governmental entities would be wise not to emulate the policies of Army Sustainment. The EEOC’s authority is only over private entities. Still, if you are representing an employee of a nonfederal governmental entity, you would still be wise to file with the EEOC first even though it would be DOJ that would ultimately prosecute the claim down the road if it comes to that.
- Not every state is a deferral state. For example, I know Alabama, Georgia, and Missouri are not deferral states. In those states, the amount of time to bring in EEOC charge is going to be shorter.
- Underlying this case is just how significant the question of whether the disability is what is being accommodated v. the essential functions of the job being accommodated. Those two concepts lead you to very different places in a case like this. Those two concepts always lead you to different places with respect to service animals in the workplace. The 11th Circuit, as we discussed here, is making it pretty clear that it is the disability being accommodated and not the job’s essential functions. If the EEOC appeals this case, they may want to bring up this distinction more explicitly.
- The trend is most definitely that failure to accommodate claims are discrete acts. That said, we did discuss a case talking about a repeated violation doctrine. See this blog entry.
- A hot debate, as we have previously discussed, exists as to whether failure to accommodate claims require an adverse action. There are cases saying that failure to accommodate claims do not need an adverse action, such as we discussed here. There are also cases saying that a failure to accommodate it by itself an adverse action. This case seems to demand an adverse employment action on top of the failure to accommodate. There is a split among the Circuits on the question of whether a failure to accommodate claim requires an adverse action. The Supreme Court will have to step in eventually to figure that out. I am not going to hazard a guess as to what the Supreme Court will do on that.
- Interesting, that the court postulates that the test for an adverse employment action is whether a reasonable person in the plaintiff’s position would view the employment action and question as adverse. That raises two points. First, we need more judges with disabilities on the bench. Second, if you are a trial attorney, especially on the plaintiff’s side, trying to get jurors with a disability or who associate with a person with a disability is very important. I would postulate that just about everybody with a disability who is taking these medications would view the request to stop taking their medications, which they absolutely need to take in order to mitigate the effects of their disability, as an adverse action. So, adverse action is very much in the eyes of the beholder. Finally, one wonders if saying that an adverse action does not exist by requesting a person to stop taking medication that they use to compensate for their disability does not violate the amendments to the ADA itself, which specifically says that mitigating measures, excepting eyeglasses, are not to be considered with respect to whether the person has a disability. In essence, the employer is saying that it gets to decide what mitigating measures a person with a disability can use. It simply doesn’t work that way. Someone else deciding on what mitigating measures work best for the person with the disability and not the person with the disability deciding that is ableism.
- This case nicely illustrates how a regarded as claim can be use without having to rely on the other prongs even where a person would satisfy the other two prongs.
- An absolutely horrible idea for an employer to treat prescription medications as a proxy for unsafe work performance. You are much better off doing an individualized analysis to figure out whether the person can perform the essential functions of the job with or without their medication and without being a direct threat to self or others (direct threat and safety are not the same concepts at all. See this blog entry for discussion of direct threat, which we have discussed many multiples of times.
- In a case we discussed here, the Fifth Circuit overturned decades of decisions and held that an ultimate employment action is not necessary in a title VII case. The court does not mention this decision perhaps because the Fifth Circuit decision and the “printing,” of this decision crossed in terms of their time frames. The arguments made by the Fifth Circuit certainly carry over to failure to accommodate claims.
- The Supreme Court has a couple of cases before it this term that will be assessing just what is an adverse action in the title VII arena. Those decisions may have wide carryover to failure to accommodate claims and bear watching.
- Very unclear as to how it shakes out with respect to the burden of proof in failure to accommodate claims as it blurs into the affirmative defense of undue hardship.
- We have discussed before it just how much notice a person have to get with respect to that notice being considered a reasonable accommodation request. See this blog entry for example. Clearly, how much notice is required is going to vary from jurisdiction to jurisdiction and even among judge to judge.
- If you are alleging a screen out claim, be prepared for the court thinking that it is a disparate impact claim. Accordingly, be prepared to present evidence of how that policy screens out people with disabilities. In a case such as this one, I don’t think it would be that hard because by definition anybody that is screened out is a person with a disability. Further, the people who are not on prescriptions are not screened out by the policy.
- Interference is simply something that is underutilized. Both plaintiff side and defense side lawyers should get familiar with it. It appears that the employer’s lawyers unfamiliarity with interference claims cost the employer the ability to get summary judgment on that issue in this case.
- It is absolutely correct that Beasley says that the failure to accommodate claim requires an adverse action. However, a close reading of that case reveals that it come very close to the proposition that the failure to accommodate by itself is an adverse action. This case seems to take a much more narrow view of that. If this decision is appealed, I would expect the EEOC to address this issue of just what kind of an adverse action, if any, is required in failure to accommodate cases.