Employment and Labor Insider - Legalese Is Not Spoken Here

As you all know, the Americans with Disabilities Act excludes "current users of illegal drugs" from protection. Meaning that an employer is free to take action against applicants or employees based on their current use of illegal drugs.

A question that has arisen a few times, and which I've managed to sidestep, has been this: What about current use of medical marijuana? Assuming the employee can certify that he or she is smoking pot with a doctor's approval and for a legitimate medical condition? In that event, can the employer take action against the employee for current use of drugs? Must the employer reasonably accommodate the drug use?

As I said, I've been able to sidestep this question because, fortunately, the few times I've been asked, it's been from an employer in my state of North Carolina or another state that hasn't legalized medical marijuana. If the pot use isn't legal, then the employee who tests positive is a current user of an "illegal" drug, meaning it's ok to take adverse action based on the drug use.

(Laws, of course, vary from state to state, so be sure to check your jurisdiction. Some states, like New York, have human rights laws that provide more protections to employees than the ADA does.)

Back to whether medical marijuana use is protected under the ADA -- we now have some guidance from the U.S. Court of Appeals for the Ninth Circuit.* The case is not an employment case -- rather, it arose from Title II of the ADA, which deals with state and local governments in the provision of public services. But the case provides some clues as to which way this relatively "employee-friendly" circuit would rule in an employment case arising from Title I of the ADA.

*The Ninth Circuit hears appeals from federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and in Guam and the Northern Mariana Islands.

In James v. City of Costa Mesa, the plaintiffs were severely disabled individuals who used marijuana to alleviate chronic pain. They sued after Costa Mesa and Lake Forest, both towns in Orange County, California, enacted ordinances and began taking action to close down medical marijuana dispensaries. The plaintiffs alleged that the anticipated closures would violate the ADA.

Here's the problem: although medical marijuana use is legal under California state law, it is illegal under the federal Controlled Substances Act. And the statute specifically says that "illegal" means any drug made illegal by the federal Controlled . . . well, you know. The parties agreed on that point.

But the ADA has an exception to the exclusion. The exception applies to "use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of federal law." The plaintiffs argued that this language meant that even a drug prohibited by the Controlled Substances Act was ok if "taken under supervision of a licensed health care professional." The cities said, no, the exception means the drug use must BOTH be "under supervision" AND "be authorized by . . . federal law." Because marijuana use is not authorized by federal law, the cities said, it would not violate the ADA for them to close down the marijuana dispensaries.

Two out of three judges agreed with the cities. The plaintiffs say they plan to petition to have the case re-heard by all of the Ninth Circuit judges. This will be an interesting issue to follow, as more states adopt statutes and pressure on the federal government increases to legalize the use of medical marijuana. (Links to these websites are for informational purposes only and should not be interpreted as an endorsement of their political activity.)

In other ADA news, Eric Meyer of The Employer Handbook blog beat me to it on a case publicized this week. Since I can't top his summary, I will link to his "How to Lose a Disability Discrimination Case in 5 Easy Steps." If you have ever made a mistake in dealing with an ADA situation, this case will make you feel a lot better -- misery loves company!

I hope you all have a great Memorial Day weekend, and to our armed forces serving our country at home and abroad, both living and deceased, THANK YOU.

Photo credits: Wikimedia Commons (public domain).

I was off enjoying the Florida sunshine last weekend while learning the latest techniques in pettifoggery and obfuscation (kidding!), but I hope I'll be making up for it today with a good case answering the musical question: "What does an employer do when it finds out that its employee on 'medical leave' is actually doing stuff?" You know, like working another job, or hanging out at the gun show, or raking leaves, or riding the Roundup at the amusement park . . . without even throwing up?

This question has bedeviled more than one employer, but the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee, has given us a good answer. But first, let's talk a bit about the employer's dilemma.

You have a policy saying that an employee can't work while on medical leave. Your policy probably doesn't cover recreational activities, but everybody knows you don't go to Six Flags or play golf or till the soil for your vegetable garden when you're sick or injured.

So you have an employee who goes out on medical leave, and somebody tells you that they saw Joe doing one of these things. Maybe you even heard that Joe had another job.

Can you fire him for fraudulent medical leave?

Not necessarily. First, it's a good idea to make sure the rumor is true, or at least "more likely than not" to be true. But even if you were the one who saw Joe doing cartwheels in his front yard during his leave for degenerative disc disease, you may not have caught him as "red-handed" as you think. (Well, maybe if he was doing cartwheels . . .) It could be that the employee's "recreational" activity, or even alternate employment, is within his medical restrictions while your job is not. In fact, most doctors would recommend that employees engage in some activity while on medical leaves. It can speed recovery and help to ward off depression by providing sunshine, fresh air, exercise, and even a little bit of money to help pay those doctor bills that you, as the employer, are not already paying.

I've seen this situation a time or two. Several years ago a client's full-time employee had to take leave under the Family and Medical Leave Act for stress. While he was on leave, somebody reliable saw him working in the men's department at a local shopping center. The company was ready to fire him for fraudulent FMLA leave, but I recommended caution because of the possibility that the job at the department store was within his medical restrictions while our client's job was not. The company investigated, and sure enough -- it turned out that the store job was part time, much less "stressful" than the employee's regular job, and completely within his restrictions.

So we ended up letting him continue to work at the store while on leave from the client.

On the other hand, we've caught (on video, which is always fun) a company nurse who supposedly couldn't work at all doing exactly the same work full time for a local doctor's office while out on workers' compensation leave from our client. We fired her and terminated her workers' comp. She threatened to sue, but gave up pretty quickly.

Other fishy real-life cases have included

*an employee out with a bad back who was seen at church wearing seven-inch stiletto heels and having no trouble getting around in them, even on the church's gravel parking lot.

*an employee out for depression who spent an entire day manning a table at a gun show.

*an employee with a bad back who spent an entire day stocking and manning a booth at a fair, and then loading boxes into her van at the end of the day.

Our recommendation in all of these cases is to take a case-by-case approach, first making sure you have reliable information, and then considering the nature of the employee's illness or injury, the employee's restrictions, and the activity he or she was "caught" doing.

But how much investigation is enough? That's the question that's been answered by the Sixth Circuit. 

The plaintiff (we'll call him "Betelgeuse") absolutely, positively won't work, babe - he just won't - but then some co-workers saw him at an Oktoberfest, walking around and drinking bier and flirting with frauleins. (I made the "flirting" part up, but the rest is true.) The employer did an investigation, interviewing the employees who had seen Betelgeuse at the fest. All but one said he seemed to be fine. One said that he seemed to be in pain. The employer also reviewed his medical and personnel records, and finally decided to fire him for taking fraudulent FMLA leave. Betelgeuse sued, alleging "interference" (not letting him have FMLA leave* he was entitled to) and retaliation (punishment for taking FMLA leave).

*Interference can also include discouraging an employee from taking FMLA leave.

The district court granted the employer's motion for summary judgment, and two judges on a three-judge panel at the Sixth Circuit affirmed. Although Betelgeuse claimed that the employer should have done a more thorough investigation, including talking to the witness who thought the employee seemed to be in pain and talking to BG's own physician, the majority said that an employer didn't have to be correct and didn't even have to conduct an "optimal" investigation. As long as it appeared that the employer honestly and reasonably believed that the employee had misrepresented his medical condition, it was ok for the employer to take action without being liable for FMLA violations.

It's obviously great news for employers that they (1) don't have to be right beyond a reasonable doubt, and (2) don't have to do an airtight investigation as long as they've done some reasonable investigation.

And, now that you're feeling all warm and fuzzy, a disclaimer - notice I said that two out of three judges reached this decision. That leaves one, who dissented. According to the dissenting judge, the employer should have followed up with the witness and the employee's doctor and its failure to do so created a "genuine issue of material fact" (requiring a jury trial) as to whether the employer's belief was reasonable and in good faith. Given the dissent, it's possible that the plaintiff will ask to have the appeal reheard by all of the judges on the Sixth Circuit, and the full Sixth Circuit may reach a different decision.

And in other news . . .

Yesterday I was honored to be part of a web radio interview hosted by Stephanie R. Thomas of The Proactive Employer with Lilly Ledbetter (yes, that Lilly Ledbetter!) on the subject of equal pay. The interview is posted on Stephanie's website, and you can listen to it at your convenience. Next Thursday at 3 p.m. EDT, Stephanie will be interviewing Patricia Shiu of the Office of Federal Contract Compliance Programs. Good stuff!

Also, I must send you to a great post by Jon Hyman talking about why we don't need new legislation to address pregnancy discrimination. Jon also provides a link to another excellent post by Suzanne Lucas ("the Evill HR Lady") on "Why you should stop attending diversity training." (Please note that Suzanne is not anti-diversity -- just "anti" most of the training that goes on these days. I happen to agree with her, but whether you do or not, I think you'll find her post thought provoking and worth your time.)

To all my fellow moms out there, have a wonderful Mother's Day weekend!

(Photos from Wikimedia Commons, public domain.)