Happy thanksgiving week everyone!!!

Today’s blog entry is the complaint, here, and consent decree, here, in U.S. v. City of Blaine, MN. The case has incredible parallels to what is going on in the world of health care professionals and Physician Health Programs (substance abuse programs such as discussed in this case, physician recovery programs are all very similar), which we discussed here. As usual, the blog entry is divided into categories and they are: key highlights of complaint; key highlights of the consent decree; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Key Highlights of Complaint

1. At all times relevant to this action, Complainant was a person with a disability because he had alcohol use disorder, an impairment that substantially limited one or more of his major life activities, including the operation of major bodily functions, and he had a record of such impairments.
2. Alcohol use disorder substantially limited the operation of Complainant’s major bodily functions, such as neurological and brain functions, and substantially limited him in major life activities, including concentrating, thinking, performing manual tasks, and communicating.
3. At all times relevant to this action, Complainant was a qualified individual with a disability because he satisfied the requisite skill, experience, education, and other job-related requirements of the position he held with Defendant and, with or without reasonable accommodation, could perform the essential functions of the position.
4. Defendant has a policy that, for employees who test positive for alcohol misuse or controlled substances use, Defendant is not responsible for any costs associated with an employee’s positive test results, including any substance abuse professional (“SAP”) evaluations, follow-ups, education, and treatment, and return-to-duty or follow-up testing required by Defendant.
5. Despite the above policy, Defendant pays for testing costs in various contexts, including as part of pre-employment medical exams, after work-related accidents, and random testing of employees.
6. In May 2020, Complainant voluntarily informed Defendant that he intended to take a 28-day leave in order to attend an alcohol treatment program.
7. Shortly after Defendant learned that Complainant planned to attend an alcohol treatment program, Defendant advised Complainant by email that he must undergo a SAP evaluation within five working days, and provided Complainant with the name of Jerry Peters, Defendant’s recommended SAP.
8. Defendant further advised Complainant that he must be removed from all safetysensitive duties until completing all recommendations from the SAP, pass an observed returnto-duty test with the results being negative for controlled substances and alcohol, and be subject to repeated follow-up testing upon his return to work.
9. Defendant further advised Complainant that he must pay for Defendant’s required testing and evaluation, and that Defendant was not financially responsible for any costs associated with Complainant’s SAP evaluations, SAP follow-ups, treatment, education, and return-to-duty or follow-up testing
10. Although Complainant never had a positive test result for alcohol or substance use of which Defendant was aware, Defendant nevertheless required Complainant to pay for his SAP evaluation and testing, even though Defendant’s policy states that it is not responsible for such costs when associated with a positive test result, and despite Defendant’s practice of paying testing costs associated with an employee’s positive test results in various contexts, including as part of pre-employment medical exams, after work-related accidents, and random testing of employees.
11. In June 2020, Complainant successfully completed an alcohol treatment program and was discharged.
12. Defendant then told Complainant that he could not return to work until he received a formal evaluation and recommendation from SAP Mr. Peters, to be provided to Defendant.
13. SAP Mr. Peters then spoke with Complainant, and told Complainant to follow the recommendations made by the alcohol treatment program Complainant had attended.
14. SAP Mr. Peters completed a SAP Evaluation and Recommendation Form regarding Complainant that he provided to Defendant, describing that Complainant successfully completed an inpatient alcohol treatment program, was an active participant, and was committed to abstinence.
15. SAP Mr. Peters recommended that Complainant undergo repeated drug and alcohol testing over the course of the next four years, follow the recommendations made by the alcohol treatment program he participated in, and attend weekly Alcoholics Anonymous meetings.
16. In early July 2020, Complainant returned to work for Defendant, on Defendant’s condition that he participate in repeated alcohol and drug testing over the course of the next four years at his own expense to document his health condition.
17. After returning to work, Complainant underwent repeated alcohol and controlled substances tests at Defendant’s direction, all of which were negative.
18. Complainant incurred substantial expenses in undergoing repeated testing and evaluation.
19. Complainant found the testing experience to be extremely humiliating, including because it was conducted in a very unprofessional and degrading manner.
20. Complainant was anxious and distressed that he was required to pay for testing that he understood his colleagues were not required to pay for, when he simply chose to be honest with Defendant about his choice to attend an alcohol treatment program.
21. Defendant’s actions caused Complainant to suffer emotional distress.
22. On or about August 27, 2020, Complainant filed a timely charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging that Defendant discriminated against him on the basis of disability.
23. Pursuant to 42 U.S.C. § 2000e-5, incorporated by reference in 42 U.S.C. § 12117(a), the EEOC investigated Complainant’s charge and found reasonable cause to believe that Defendant discriminated against him in violation of the ADA.
24. After the EEOC’s conciliation efforts failed, the EEOC referred the matter to the United States Department of Justice.
25. By requiring Complainant, and any other similarly situated employees, to pay for alcohol and drug testing and evaluation based on their disability, Defendant’s conduct as described in this Complaint constitutes discrimination on the basis of disability in violation of Title I of ADA, 42 U.S.C. §§ 12111−12117, and its implementing regulation, 29 C.F.R. Part 1630.
26. Defendant’s policies and practices deprive Complainant, and any other similarly situated employees with disabilities, of equal employment opportunities, and otherwise adversely affect their status as employees because of their disabilities.

II

Key Highlights of Consent Decree

1. Defendant denies the allegations and denies any ADA violations.
2. General Nondiscrimination Obligation: Defendant, by and through its officials, agents, legal representatives, employees, and contractors, shall not engage in any act or practice that discriminates against any applicant or employee on the basis of disability in violation of Title I of the ADA and its implementing regulation.
3. Written Policies, Practices, and Procedures: Defendant shall revise its policies, practices, and procedures to ensure that it does not discriminate on the basis of disability in its employment practices, including with respect to medical testing, services, and examinations, in violation of the ADA. Specifically, Defendant will revise its policies, practices, and procedures to provide that it will pay for services of a Substance Abuse Professional (“SAP”) and testing required by a SAP where: (1) an employee either voluntarily discloses alcohol use disorder, discloses other information indicating a disability, and/or participates in a drug or alcohol educational or treatment program; (2) the employee possesses a commercial driver’s license (CDL) and is subject to U.S. Department of Transportation (“DOT”) laws and regulations; and (3) A CDL driver does not self-identify as misusing alcohol or controlled substances in order to avoid testing under the requirements of the applicable DOT regulation.
   1. Within ninety (90) days of the entry of the Decree, Defendant shall send its revised policies, practices, and procedures to the United States for approval, which shall not be unreasonably withheld.
   2. Within thirty (30) days of the United States’ final approval of the revised policies, practices, and procedures, Defendant shall implement the revised policies, practices, and procedures, including by distributing copies of these policies to all employees whose work may be affected by such policies, practices, or procedures.
4. Training: Within ninety (90) days of the United States’ final approval of all policies, practices, and procedures revised pursuant to Paragraph 8, Defendant shall submit to the United States for approval, which shall not be unreasonably withheld, the name of the trainer or trainers it seeks to use, including their Curriculum Vitae or resume, as well as an outline of the training content. Within six (6) months of the United States’ final approval of all policies, practices, and procedures revised pursuant to Paragraph 8, and annually throughout the term of this Decree, Defendant shall provide training on Title I of the ADA, and its implementing regulations, and Defendant’s revised policies, practices, and procedures, to employees who are involved in personnel decisions. The training shall also be provided to such applicable employees who are hired or promoted during the term of this Decree, within sixty (60) days of the start of their positions with Defendant. All trainings shall be conducted by trainers knowledgeable about Title I of the ADA, who Defendant has selected and the United States has approved. Trainings may be in-person, remote, and/or pre-recorded.
5. Within fifteen (15) days of the entry of the Decree, Defendant shall offer Complainant a total monetary amount of $13,229.07, which includes:
   979. A monetary amount of $1,979.07, which is designated as out-of-pocket costs.
   980. A monetary amount of $11,250.00, which is designated as compensatory damages.
6. The decree lasts for 30 months.

III

Thoughts/Takeaways

1. The first question y’all might be asking is how does DOJ get involved in a title I lawsuit? Isn’t that the problem of the EEOC? Common question. The answer is the EEOC only has authority to prosecute title I lawsuits against private entities and not against nonfederal governmental entities. Prosecution of title I lawsuits against nonfederal governmental entities is the responsibility of DOJ. The way it works in those cases (I recently finished the representation of an individual working for a nonfederal governmental entity), is that: you should file with the EEOC within the applicable time frames; the EEOC then investigates and it may take some time for it to do so (you can expect at least six months and probably much longer); once the investigation is complete, the EEOC decides whether it will issue a right to sue or will issue a cause finding; if it issues a cause finding, which it must have done so in this case, the parties can agree to conciliation; if conciliation fails (the EEOC in its discretion decides that), then they either will issue a right to sue or will refer it to DOJ for prosecution.
2. Alcoholism is a disability.
3. Bad idea to say that costs will be paid for dealing with certain disabilities but not others.
4. Bad idea to force an employee to pay the costs of an employer mandated action when that action turns on the disability of the employee.
5. In the professional health program world, it is the healthcare professional that pays on a cash basis thousands of dollars to monitor their disabilities the PHP’s has decided the professional has.
6. Whether a person is qualified in the employment context, depends upon whether they can do the essential functions of the job with or without reasonable accommodations without being a direct threat to self or others.
7. Direct threat, as we discussed here, must be based upon an individualized analysis of whether the person has the present ability to safely perform the essential functions of the job with or without reasonable accommodations using the most current medical knowledge and/or the best available objective evidence.
8. The DOJ has gone after the Pennsylvania courts and the Indiana Board of Nursing with respect to their insistence that the only way a person can qualify for their programs is by way of abstinence. So, be careful of requiring abstinence as a condition of participation with respect to returning to employment or with respect to a nonfederal governmental entity’s programs and activities. Also, be careful about mandating AA type participation as a condition of employment, as I am aware of case law saying such a requirement infringes upon freedom of religion. Individualized analysis always rules.
9. This is a title I case but it strongly suggests that the DOJ may be very receptive to similar claims with respect to licensed professionals and the associated professional recovery programs, which are very much hooked into licensure.
10. The consent decree requires revisions of the policies and procedures as well as training (training is a large part of my practice). With respect to DOJ consent decrees/settlements, I have seen outside trainers, including myself, utilized. On the EEOC side, it isn’t unusual for the EEOC itself to do the training.
11. This consent decree goes for 2 ½ years.
12. Anybody representing professionals in licensing matters whom have gotten referred to some kind of recovery program associated with the licensure system needs to be aware of this complaint and consent decree.
13. Keep in mind in these licensure situations, you will virtually always have title II and title III going on simultaneously. You also may have title I going on as well. While the definitional terms are the same and the reasonable accommodation/modification paradigm is the same, the actual statutes, regulations, guidances, etc., can vary considerably. So, be sure to get help (for example, I work across all of the titles), if you are getting into an area of the ADA you are not terribly familiar with. I have seen far too many attorneys assume they can do a title of the ADA they don’t normally do because the definitional terms and the paradigm are similar. It simply doesn’t work that way.

Have a safe and happy Thanksgiving everyone!!!!