- A supervisor's knowledge that a worker was taking a prescription drug was not enough to show that the employer regarded the worker as having a disability and discriminated against him on that basis, the 8th U.S. Circuit Court of Appeals has ruled (Voss v. Housing Authority of the City of Magnolia, Arkansas, No. 17-1650 (8th Cir. Feb. 25, 2018)).
- Paul Voss worked as a maintenance supervisor for the Housing Authority of the City of Magnolia, Arkansas. After he tested positive for "opiates/morphine," his employer requested additional information. He initially refused and was suspended without pay, but soon thereafter provided a prescription for hydrocodone, according to court documents. The employer then requested a letter from his physician explaining whether any side effects of the medication could hinder his ability to perform his work duties; it also reinstated his pay retroactively and made sure that his health insurance did not lapse during the suspension. The employer eventually allowed Voss to return to work without the letter, but told him he could not operate the housing authority's vehicles and equipment until he provided the information. Voss resigned and sued.
- A district court dismissed his claims, and the 8th Circuit agreed on appeal that Voss had not established discrimination. Voss was unable to show that he suffered an adverse employment action because of a perceived disability, the 8th Circuit said. Relevant case law indicates that Voss' suspension wasn't an adverse employment action, the court explained; and even assuming it was, the fact that Voss' supervisor knew he was taking hydrocodone was not enough evidence to infer that the supervisor regarded Voss as an individual with a disability as defined by the Americans with Disabilities Act (ADA).
The "regarded as" prong of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. And while the standard has deep roots in the statute, the ADA Amendments Act of 2008 lowered the bar for "regarded as" claims.
The focus for establishing coverage under that prong is now on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the U.S. Equal Employment Opportunity Commission. Notably, however, only individuals covered by the definition's first two prongs — actual disability and record of disability — are entitled to reasonable accommodations.
Employers that conduct drug tests may want to note what the employer did right in Voss. It was able to show that the employee's suspension was not an adverse employment action that would give rise to a discrimination claim. Its response to the positive test generally was in line with what experts recommend.
Such issues may arise more frequently for employers as the opioid crisis continues unabated. To combat recruitment and retention issues stemming from drug use, employers are getting creative, seeking out employees with criminal records who are required to refrain from drug use as a condition of their parole, or offering drug treatment to applicants who fail an initial screen. Employers also are seeing more states legalize marijuana, leading some to relax their zero-tolerance policies.