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DEALING WITH DIFFICULT EMPLOYEES

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DEALING WITH DIFFICULT EMPLOYEES Powered By Docstoc
					                            DEALING WITH DIFFICULT EMPLOYEES
                                                 Henry Morris, Jr.
                                                Kristine J. Dunne1
        Lawyers and human resource professionals devote years to mastering the art of
dealing with difficult employees. We could not even hope to cover the field in a single
outline. Instead, we discuss some of the more pressing issues that appear common
among colleges and universities: (1) leave as a reasonable accommodation under the
Americans with Disabilities Act; (2) whether an employer must rescind discipline if it
learns that the offending employee behaved inappropriately because he is disabled; (3)
handling belligerent employees; (4) mandatory drug and alcohol testing at private
colleges and universities; (5) required counseling at private colleges and universities; and
(6) fitness for duty examinations.
         A.       Leave as a Reasonable Accommodation under the Americans With
                  Disabilities Act

                  1.       How Much is Enough?

        The Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (the "FMLA"),
entitles eligible employees to take up to 12 weeks of leave for specified reasons during
any 12-month period.2 In most situations, the employer‟s analysis under the statute is
straightforward. If the employee (1) is eligible to take FMLA leave; (2) wishes to take
the leave for a reason that the statute contemplates; and (3) provides proper notice and
documentation, the employer must grant the request.

       Managing absenteeism by employees who are ineligible for FMLA leave or who
have exhausted their FMLA leave entitlement, however, can be problematic.

       According to the Equal Employment Opportunity Commission (the "EEOC"),
allowing disabled employees to take reasonable unpaid leaves of absence is an
appropriate reasonable accommodation under the Americans with Disabilities Act, 42
U.S.C. § 12101, et seq. See Appendix to 29 C.F.R. § 1630.2(o) (Reasonable
accommodation may include "permitting the use of accrued paid leave or providing
additional unpaid leave for necessary treatment. . . .").
1
         Henry Morris, Jr. is a member with Arent Fox PLLC, in Washington, D.C. He concentrates in
employment, labor, and education law. Kristine J. Dunne is an Arent Fox associate, whose practice spans
the same areas, as well as OSHA. Ms. Dunne's cheerful and able assistance in preparing this outline is
greatly appreciated.
2
         Under the FMLA, employees may take leave for one or more of the following reasons:
         A. Because of the birth of a son or daughter of the employee and in order to care for such son or
         daughter.
         B. Because of the placement of a son or daughter with the employee for adoption or foster care.
         C. In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse,
         son, daughter, or parent has a serious health condition.
         D. Because of a serious health condition that makes the employee unable to perform the functions
         of the position of such employee.

29 U.S.C. § 2612(a)(1)(A)-(D).

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       But how much leave is reasonable? The answer is, it depends.

         Determining whether a leave request is reasonable entails an individualized and
fact-specific inquiry. See, e.g., Cehrs v. Northeast Ohio Alzheimer's Research Center,
155 F.3d 775, 782 (6th Cir. 1998), reh'g en banc denied, 1998 U.S. App. LEXIS 29662
(6th Cir. Oct. 16, 1998) ("[T]o answer the question of whether a disabled person is
otherwise qualified the district court will need to conduct an individualized inquiry and
make appropriate findings of fact. . . . If we are to presume that uninterrupted attendance
in all instances is a mandatory job requirement, then the policies and needs of both the
individual employer and employee would never be considered."); Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) ("Determining whether a proposed
accommodation (medical leave in this case) is reasonable, including whether it imposes
an undue hardship on the employer, requires a fact-specific individualized inquiry.");
Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602 (7th Cir. 1998);
Appendix to 29 C.F.R. § 1630(9) (Determining whether an accommodation request is
reasonable "requires the individual assessment of both the particular job at issue, and the
specific physical or mental limitations of the particular individual in need of reasonable
accommodation.").

       In the words of the Seventh Circuit:

       We do not dispute that a business needs its employees to be in regular
       attendance to function smoothly; the absence of employees is disruptive to
       any work environment. However, it is not the absence itself but rather the
       excessive frequency of an employee's absence in relation to that
       employee's job responsibilities that may lead to a finding that an employee
       is unable to perform the duties of his job. Consideration of the degree of
       excessiveness is a factual issue well suited to a jury determination.

       Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 602 (7th
       Cir. 1988).

        Consistent with that principle, several courts have refused to hold a leave request
unreasonable as a matter of law, even though the requesting employee would be absent
for a protracted period. The Sixth Circuit's decision in Cehrs v. Northeast Ohio
Alzheimer's Research Center is a recent example.

        There, the employer granted the employee's request for a two-month medical
leave of absence. When the employee's disabling condition persisted, she requested
(1) two extensions of the leave, of one month and two weeks' duration, respectively; and
(2) permission to work on a part-time basis for a month thereafter. The employer denied
the request, asserting that the employee's need for such a protracted leave rendered her
not "otherwise qualified" under the ADA. The Sixth Circuit, however, disagreed, holding
that "a genuine issue of fact exists as to whether granting further leave would have
unduly burdened [the employer], or instead would have constituted a reasonable
accommodation to Cehrs under the ADA." Cehrs, 155 F.3d at 783.


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        The Tenth Circuit's decision in Rascon v. U.S. West Communications, 143 F.3d
1324 (10th Cir. 1998), is to the same effect. Rascon requested a leave of between six
weeks and nine months, estimating that he would probably return to work within four
months. His employer, U.S. West, which had a policy of allowing employees up to one
year of leave, permitted Rascon take three separate leaves of absence, each thirty days
long. U.S. West, however, terminated Rascon when he was unable to return after the last
leave. It contended that allowing him to remain on leave would, as a matter of law,
impose upon U.S. West the undue hardship of requiring Rascon's co-workers to perform
his duties for a prolonged period.

       The Tenth Circuit unhesitatingly rejected that defense.

       [The Employer] is a global corporation with 50,000 to 60,000 employees. . . .
       Furthermore, [the employer] did not replace [the plaintiff] while he was [on
       leave]. . . . Under the circumstances, the fact that [the plaintiff's] duties were
       covered by his co-workers while he was on leave does not establish that granting
       [the plaintiff] leave until he completed the treatment program would have caused
       [the employer] undue hardship.

       Id., 143 F.3d at 1335.

       The Ninth Circuit's decision in Nunes accords with Cehrs and Rascon. On
March 1, 1995, Nunes began an approved medical leave of absence from Wal-Mart. Her
physician estimated that she would be able to return to work by May 1. After May 1, her
doctors advised Wal-Mart that she needed additional time off, until November or
December, 1995. Wal-Mart, however, terminated Nunes on October 27th.

        Nunes sued under the ADA. The district court granted Wal-Mart's motion for
summary judgment, holding that Nunes was not a "qualified individual with a disability"
because of her need for an extended leave. But the Ninth Circuit reversed, stressing that
(1) the ADA requires assessment of whether a disabled person can perform the essential
functions of his job "with or without reasonable accommodation;" (2) an extended
medical leave or an extension of an existing leave period "may" constitute a reasonable
accommodation; and (3) Nunes had raised material issues of fact as to whether it would
have imposed an undue hardship on Wal-Mart to have allowed her additional time off.

       Nunes had raised a genuine issue of material fact as to whether her
       medical leave, projected to extend to November or December 1995, was a
       reasonable accommodation. An issue of fact also exists as to whether the
       accommodation sought would impose an undue hardship on Wal-Mart.
       Weighing against Wal-Mart on these issues are its stated benefit policy
       that eligible employees could take up to one year of unpaid medical leave,
       and its regular practice as a large retailer of hiring temporary help during
       the holiday season.

       Nunes, 164 F.3d at 1247.


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       The First Circuit reached a similar result in Ralph v. Lucent Technologies, Inc.,
135 F.3d 166 (1st Cir. 1998). Ralph was a full-time employee who took 52 weeks of paid
leave under Lucent Technologies' sickness and accident disability benefit plan. He then
asked to return to work part-time until he got accustomed to being back. Lucent said no.

        Ralph sued, seeking a temporary injunction permitting him to return to work with
"a reasonable accommodation for his disability." Id. at 167. Lucent rejoined that it had
accommodated Ralph enough by permitting him to take 52 weeks of paid leave and
making certain other workplace adjustments.

        The district court disagreed and ordered Lucent to allow Ralph to work part-time
for four weeks. The First Circuit affirmed, explaining that

       [t]he duty to provide reasonable accommodation is a continuing one. . . and not
       exhausted by one effort. . . .

       The very limited four-week accommodation ordered by the district court strikes
       us as eminently reasonable; so reasonable, in fact, that we are puzzled that Lucent
       has drawn a line in the sand at this point.

       Id. at 172.

        Ralph, Nunes, Cehrs, and Rascon make clear that employers must at least
consider allowing employees to take a prolonged leave of absence as a reasonable
accommodation. Still, courts have acknowledged that there are limits to the amount of
leave that employers need extend.

        For example, some courts have found certain lengthy leave requests unreasonable
as a matter of law. Typically, those cases involve requests for leave approximating a year
or more in duration. See, e.g., Corder v. Lucent Technologies, Inc., 162 F.3d 924 (7th
Cir. 1998) (request for continued leave unreasonable where employer allowed plaintiff
approximately 43 weeks of leave in 1991, 19 weeks of leave in 1992, 9 weeks of leave
and a modified work schedule in 1993, 5 months of leave in 1994 and 6 months of leave
in 1995); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 225-1226 (11th Cir. 1997)
(request for leave unreasonable where employee who had been allowed 10 months of
leave still could not forecast when he would be able to return to work); Tumbler v.
American Trading and Production, 6 Am. Disability Cases (BNA) 1439, 1440 (E.D. Pa.
1997) (employee not able to work for 10 months is not a "qualified individual with a
disability"); Peques v. Emerson Electric Co., 5 Am. Disability Cases (BNA) 376, 380
(N.D. Miss. 1996) (employee on leave for "nearly an entire year" not entitled to a leave
extension); Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 201 (S.D.N.Y. 1999)
("We. . . conclude that a court may hold, without the need for a trial, that a requested
leave of absence is an unreasonable accommodation, only in unusual circumstances, e.g.,
where the request is for a very long leave of absence, such as one year (although we do
not here hold that any exact number is the 'red line' that demarcates the reasonable from
the unreasonable. . . .").

       The Southern District of Florida put the matter this way.
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       It is true that under the ADA, a reasonable accommodation might include
       'additional unpaid leave.' However, neither the ADA nor the regulations
       promulgated to aid in interpreting that law provide any guidance as to how long
       such additional unpaid leave must be. Of course, the reasonableness of this
       interpretation is generally a question of fact, and would normally preclude the
       granting of a motion for summary judgment on this basis. However, this Court
       concludes that, as a matter of law, an employer is not required to grant one-year
       leave of absence, and such an accommodation is, on its face, unreasonable.

Dockery v. North shore Medical Center, 909 F. Supp. 1550, 1560 (S.D. Fla. 1995).

         Similarly, courts have held that the ADA does not require employers to allow
employees to take leaves of indefinite duration. See, e.g., Haschman, 151 F.3d at 602
("[A]n employer is not required to provide unlimited leave as an accommodation under
the ADA. . . ."); Corder 162 F.3d at 928 ("[N]othing in the ADA requires employers to
give an employee indefinite leaves of absence."); Rascon, 143 F.3d at 1344 ("[A]n
indefinite leave is not a reasonable accommodation where the plaintiff fails to present
evidence of the expected duration of her impairment."); Myers v. Hose, 50 F.3d 278, 283
(4th Cir. 1995) ("[R]easonable accommodation does not require the [employer] to wait
indefinitely for the [plaintiff's] medical condition to be corrected."); Nowak v. St. Rita
High School, 142 F.3d 999, 1004 (7th Cir. 1998) ("The ADA does not require an
employer to accommodate an employee who suffers a prolonged illness by allowing him
an indefinite leave of absence."); Mitchell v. Washingtonville Central School District,
190 F.3d.1, 9 (2d Cir. 1999) (same); Rogers v. Int'l Marine Terminals, 876 F.3d 755, 759
(5th Cir. 1996) ("Rogers cannot demonstrate that IMT could reasonably accommodate his
purported disability. While Rogers contends that IMT was required to accommodate him
by allowing him to enjoy indefinite leave, this argument is meritless."); Carr. v. Reno, 23
F.3d 525, 529 (D.C. Cir. 1994) (employer need not tolerate employee whose attendance
is erratic and unpredictable); Walton v. Mental Health Ass'n of Southeastern
Pennsylvania, 8 Am. Disability Cases (BNA) 1325 (E.D. Pa. 1997) ("Surely an
accommodation whereby the leave would be totally dependent upon [the employee's]
changing view of her return date is not required by the ADA"); Allen v. GTE Mobile
Communications Service Corp., 6 Am Disabilities Cases (BNA) 1063, 1065 (N.D. Ga.
1997) ("Employers are entitled to expect regular and predictable attendance at work,
which is an essential function of most jobs.").

         Neither must an employer accommodate an employee whose absences are so
erratic that the employer cannot reasonably anticipate whether or when the employee will
report to work. Porter v. Columbia Picture Industries, 204 F.3d 326, 338 (2d Cir. 2000)
(“[t]he duty to make reasonable accommodations does not, of course, require an
employer to hold an injured employee‟s position open indefinitely while the employee
attempts to recover”); Walsh v. United Parcel Service, 201 F.3d 718, 727 (6th Cir. 2000)
(when there is no reasonable prospect for the individual to work in the identifiable future,
“it is objectively not an accommodation that the employer should be required to
provide”); Cisperos v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000) (“a request for
indefinite leave cannot constitute a „reasonable accommodation‟” since the request “does
not allow the employee to perform the essential functions of the job in the near future.”)

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(emphasis omitted); Waggoner v. Olin Corp., 169 F.3d 481 (7th Cir. 1999) ("We think it
also fair to conclude that in most instances, the ADA does not protect persons who have
erratic unexplained absences, even when those absences are the result of a disability.");
Jackson v. Veterans Admin. 22 F.3d 277 (11th Cir. 1994) ("Requiring the [employer] to
accommodate [unpredictable] absences would place upon the [employer] the burden of
making last-minute provisions for [the employee's] work to be done by someone else.
Such a requirement would place an undue hardship on the [employer]"); Haschmann, 151
F.3d at 602 (ADA does not require employers to "tolerate erratic, unreliable
attendance."); Matzo v. Postmaster General, 685 F.Supp. 260 (D.D.C. 1987), aff'd, 861
F.2d 1290 (D.C. Cir. 1988) (employee whose attendance at work is unreliable and
sporadic failed to fulfill an essential function of his job).

        Courts have deemed a leave request unreasonable as a matter of law where there
was no evidence that the employee would be able to perform the essential functions of his
job at the conclusion of the leave. See, e.g., Coleman v. Computer Assocs., Inc., 1998
U.S. App. Lexis 1824*3 (9th Cir. 1998) ("According to Coleman and the doctor who
examined her. . . she would have been unable to return to the same job, with its
concomitant stress, even after a leave of absence. Under those circumstances, her
employer was not obligated under the ADA . . . to offer her a second leave of
absence.");3 Allen v. GTE Mobile Communications Service Corp, 6 Am. Disability Cases
(BNA) at 1065 (employer not required to allow employee continued leave where there is
no evidence that the employee would be able to return to the job at any time in the
foreseeable future).

      Additionally, at least one court has refused to require an employer to allow an
employee to take an extended leave of absence when the employee was hired to a
complete specific task under exigent time limitations.

         In Stubbs v. Marc Ctr., 950 F.Supp. 889 (D. Ill. 1997), the employer hired Stubbs
to be its finance director. When hired, Stubbs' chief task was to prepare the employer's
annual budget, which was due in approximately three months.

        Stubbs suffered a heart attack shortly after joining the employer and before
starting work on the budget. The condition left him completely disabled for two weeks
and able to work only on a limited basis for two weeks thereafter. Concerned about its
budget, the employer terminated Stubbs and replaced him with a person who could begin
work on the project immediately.

         Stubbs sued under the ADA, contending that the employer should have
accommodated him by allowing him to take leave and to work a modified schedule. The
district court, however, granted the employer‟s motion for summary judgment, holding
that the requested accommodation was unreasonable in light of the exigencies of Stubb's
position.


3
         As discussed below, an employee unable to perform the essential functions of his job when his
leave concludes may be entitled to a transfer to another position.

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         Best Practices: When an employee requests a leave of absence, the college or
university should require the employee to state his anticipated return date. The institution
may reasonably consider denying the request if (1) the employee cannot reasonably
forecast his return date; (2) the employee's absences would be so erratic or unpredictable
that the institution cannot anticipate from day-to-day whether or when the employee will
report to work; (3) the employee will be unable to work once the leave ends;4 (4) the
institution hired the employee to perform a specific task within a limited period of time
and the leave of absence would preclude the employee from completing it on time; or (5)
the institution identifies other factors that would make it an undue hardship to grant the
requested leave.

        Plainly, the projected length of the requested leave is relevant in making the
undue hardship assessment. In considering that factor, however, the institution should
remain mindful of any policies allowing employees to spend extended periods away from
work for such things as (1) annual leave, (2) sick leave; (3), jury duty; (4) temporary
disability; (5) military duty; and (6) sabbatical. While not dispositive, the existence of
such policies suggests that allowing disabled employees to take a lengthy leave of
absence may not impose an undue hardship on the institution.

                2.       Transferring Disabled Employees Unable to Return to their Pre-
                         Leave Position

       When an employee takes a leave of absence as a reasonable accommodation, the
EEOC mandates that the employer allow the employee to return to his pre-leave position,
"unless the employer demonstrates that holding open the position would impose an undue
hardship." Equal Employment Opportunity Commission, Revised Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, Question 18 (Oct. 2002). If such a hardship exists, the EEOC directs the
employer to consider transferring the employee to a vacant equivalent position for which
the employee is qualified. Id. According to the EEOC, if no such position exists, the
employer transfer the employee to a vacant lower-level position for which he is qualified.
Id.

        The EEOC further directs that an employee unable to perform his duties because
of a disability be given to a preference over more qualified candidates when filling such
vacancies. "[A]s long as the employee with the disability is qualified for the position i.e.,
meets the qualification requirements and can perform the essential functions, with or
without a reasonable accommodation, then he/she is entitled to it, even if the other
candidate is considered better qualified." Letter from Peggy R. Mastrojanni, Esquire,
EEOC Associate Legal Counsel, to Mr. Randel K. Johnson, Vice President, Labor and
Employee Benefits, U.S. Chamber of Commerce (Jan. 1, 2000), reprinted in, 28 Daily
Labor Report, E-1 - E-2 (Feb. 10, 2000). Accord Smith v. Midland Brake, Inc., 180 F.3d
1154 (10th Cir. 1999) (“[T]he disabled person has a right in fact to the reassignment, and
not just to the consideration process leading to the potential reassignment.”); Aka v.
Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1988) (“[T]he word „reassign‟

4
       Subject, of course, to the employee‟s possible right to transfer to another position.

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must mean more than allowing the employee to apply for a job on the same basis as
everyone else.”). Contra EEOC v. Hemiston-Keeling, 227 F.3d 1024 (7th Cir. 2000)
(requiring employees to give a preference to disabled employees when filing vacancies
would be “affirmative action with a vengeance.”).

        The Supreme Court has held that the ADA generally does not require an employer
to modify its seniority policies to enable a disabled employee to be reassigned. U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 402-405 (2002). The Court added, however, that
there are “special circumstances” in which a seniority system must yield to a disabled
employee‟s reassignment right: Such as where the employer's conduct has undermined
employee confidence that the employer will consistently and uniformly adhere to the
seniority system.

        The Plaintiff might show, for example, that the employer, having retained the
        right to change the seniority system unilaterally, exercises that right frequently,
        reduce employee expectations that the system will be followed -- to the point
        where one more departure, needed to accommodate an individual with a
        disability, will not likely make a difference. The Plaintiff might show that the
        system already contains exceptions such that, in the circumstances, one further
        exception is unlikely to matter.

Id. at 405.

      Best Practices: Do not relax simply because your institution has determined that
an employee is unable to return to his pre-leave position. Under the ADA, such an
employee may be entitled to transfer to another position.

         To comply with the EEOC's mandate, colleges and universities must, in essence,
adopt a two-phase approach to filling a job vacancy. First, the institution must consider
employees unable because of a disability to perform the essential functions of their
position. Then, only if there are no minimally qualified disabled employees, may the
institution consider others who may be interested in and possibly more qualified for the
job.

        B.     My Disability Made Me Do It: Must an Employer Rescind Discipline If It
               Learns that the Employee Behaved Inappropriately Because He is
               Disabled?

        Hypothetical: Acme University terminates James for violating its policy
against excessive tardiness. After the termination James pleads for a second
chance, explaining that his tardiness resulted from sleep apnea, a recognized ADA
disability. Must Acme agree to James‟ request?

        Answer: Probably Not.

       The EEOC has long recognized that employers may hold all employees --
disabled and nondisabled alike -- to the same performance and conduct standards. Equal
Employment Opportunity for Individuals with Disabilities, Final Rule, 53 Fed. Reg.

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35,733 (July 26, 1991). Consistent with that view, courts have held that an employer
need not rescind discipline if it later learns that a disability caused the offending conduct.

Hill v. Kansas City Area Transportation Authority, 181 F.3d 891 (8th Cir. 1999), is
instructive.

        The Transportation Authority terminated Hill for twice falling asleep on the job.
Thereafter she explained to her supervisor that the cocktail of medications that she took
for pain and hypertension affected her ability to remain awake. And she asked the
Authority to accommodate her disability by rescinding its discharge decision.

        The Authority said no. Hill‟s ADA suit followed.

       The District Court granted the Authority‟s summary judgment motion. And the
Eighth Circuit affirmed, explaining that the ADA entitles employees to a reasonable
accommodation, not to a “second chance.”

        Hill did not request a disability accommodation, she asked for a second chance to
        better control her treatable medical condition. That is not a cause of action under
        the ADA.

Id. at 894.

       The Seventh Circuit reached a similar result in Siefken v. Arlington Heights, F.3d
       th
664 (7 Cir. 1995).

        Siefken was an Arlington Heights police officer who suffered a diabetic reaction
while on duty. It caused him to become disoriented and drive his squad car erratically
and at high speed through residential areas.

        Arlington Heights fired him. And he sued under the ADA.

       The Seventh Circuit affirmed the District Court‟s order dismissing the case,
explaining that Siefken‟s had not brought a cognizable ADA claim.

        „It is plain enough what accommodation means. The employer must be
        willing to consider making changes to its ordinary work rules, facilities,
        terms and conditions in order to enable a disabled individual to work. . . .
        Siefkin is not asking for an accommodation; he is not asking the Village to
        change anything. He is asking for another chance to allow him to change
        his monitoring technique. But the ADA does not require this.

Id. at 666-67 (emphasis in the orginal).

       In Flynn v. Raytheon Co., 868 F.Supp. 383, aff’d, 1996 U.S. App. Lexis 20837
  st
(1 Cir. 1966) (unpublished), the district court framed the issue as follows: “[M]ay an
employer, consistent with its duty under federal law to make „reasonable
accommodation‟ to the known physical disabilities of its employees, summarily fire an

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employee known to be suffering from alcoholism the very first time that he shows up for
work under the influence?”

       The court‟s answer was an unequivocal yes.

       Reasonable accommodation does not extend to accommodating an
       alcoholic employee‟s showing up for work under the influence of alcohol
       or drinking alcohol on the job. Because Flynn violated a company policy,
       he cannot now, without more, belatedly avail himself of the [ADA‟s]
       reasonable accommodation provisions. . . .

       Id. at 387.

        Best Practices: The ADA does not require an employer to rescind disciplinary
decisions, if the employer later learns that a disability caused the employee to engage in
the offending conduct. But, if the employee remains on the workforce, the employer
should take reasonable steps to enable the employee to perform his job effectively in the
future.

       C.      How to Handle Belligerent Employees

        Handling belligerent employees, especially those with mental or emotional
impairments can pose vexing problems. Such employees may be entitled to protection
under the ADA. See, e.g., Duda v. Board of Educ., 133 F.3d 1054, 1059 (7th Cir. 1998)
(distinguishes between “claims of personal conflicts with others, or mere temperament
and irritability” and medically diagnosed mental conditions,” such as manic depression
and alcoholism which are recognized disabilities under the ADA); EEOC Enforcement
Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25,
1997) (“EEOC Guidance”). Yet, their presence in the workplace may be disruptive and
demoralizing.

        The ADA does not require employers to excuse disruptive and detrimental
conduct, even if it results for a psychiatric or emotional disability. Rather, according to
the EEOC, an employer may discipline employees who, because of such a disability,
violate workplace conduct standards, if the standard is (1) consistently enforced; (2) job-
related; and (3) consistent with business necessity.

       Nothing in the ADA prevents an employer from maintaining a workplace free of
       violence or threats of violence, or from disciplining an employee who steals or
       destroys property. Thus, an employer may discipline an employee with a
       disability for engaging in such misconduct if it would impose the same discipline
       on an employee without a disability. Other conduct standards, however, may not
       be job-related for the position in question and consistent with business necessity.
       If they are not, imposing discipline under them could violate the ADA.




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EEOC Guidance at Question 30.5

      Additionally, the ADA does not require employers to accommodate employees
who pose a “direct threat to the health and safety of others in the workplace,” 42 U.S.C.
§ 12113(b), that "cannot be eliminated by a reasonable accommodation." Id. at 12111(3).

       Thus, in Robertson v. Neuromedical Center, 161 F.3d 292, 296 (5th Cir. 1998),
the employer terminated Robertson, a neurologist with attention deficit/hyperactivity
disorder. Robertson brought an ADA suit. But the District Court granted the employer's
summary judgment motion.

        The Fifth Circuit affirmed, explaining that Robertson posed a direct threat to the
safety of others in the workplace.

        [T]he ADA does not require an employer to accommodate an individual if the
        employee would pose a direct threat to the health and safety of others…. Based on
        his own testimony that he was concerned for his patients' safety, Robertson posed
        a 'direct threat' to the health and safety of others in the workplace. Robertson's

5
        The EEOC offers three examples:

        Example A: An employee steals money from his employer. Even if he asserts that his misconduct
        was caused by a disability, the employer may discipline him consistent with its uniform
        disciplinary policies because the individual violated a conduct standard -- a prohibition against
        employee theft -- that is job-related for the position in question and consistent with business
        necessity.

        Example B: An employee at a clinic tampers with and incapacitates medical equipment. Even if
        the employee explains that she did this because of her disability, the employer may discipline her
        consistent with its uniform disciplinary policies because she violated a conduct standard -- a rule
        prohibiting intentional damage to equipment -- that is job-related for the position in question and
        consistent with business necessity. However, if the employer disciplines her even though it has
        not disciplined people without disabilities for the same misconduct, the employer would be
        treating her differently because of disability in violation of the ADA.

        Example C: An employee with a psychiatric disability works in a warehouse loading boxes onto
        pallets for shipment. He has no customer contact and does not come into regular contact with
        other employees. Over the course of several weeks, he has come to work appearing increasingly
        disheveled. His clothes are ill-fitting and often have tears in them. He also has become
        increasingly anti-social. Coworkers have complained that when they try to engage him in casual
        conversation, he walks away or gives a curt reply. When he has to talk to a coworker, he is abrupt
        and rude. His work, however, has not suffered. The employer's company handbook states that
        employees should have a neat appearance at all times. The handbook also states that employees
        should be courteous to each other. When told that he is being disciplined for his appearance and
        treatment of coworkers, the employee explains that his appearance and demeanor have
        deteriorated because of his disability which was exacerbated during this time period. The dress
        code and coworker courtesy rules are not job-related for the position in question and consistent
        with business necessity because this employee has no customer contact and does not come into
        regular contact with other employees. Therefore, rigid application of these rules to this employee
        would violate the ADA.

EEOC Guidance at Question 30.

                            National Association of College and University Attorneys
                                                      11
        short-term memory problems had already caused various mistakes to be made in
        patients' charts and in dispensing medicine. Most significantly, Robertson voiced
        his own concerns about his ability to take care of patients, stating that it was only
        a matter of time before he seriously hurt someone. In light of this evidence, we
        agree with the district court's conclusion that any accommodations in this case
        would be unjustified from the standpoint of the basic medical safety of Dr.
        Robertson's patients.


Id. at 296.

        Still, the EEOC has made clear that employers relying upon the direct threat
defense face a heavy burden. For example, they must base the direct threat determination
on an "individualized assessment" of the employee's "present ability to safely perform his
job functions, considering a reasonable medical judgment relying on the most current
medical knowledge and/or the best available objective evidence." EEOC Guidance, at
20.

        Thus, according to the EEOC, an employer may not assume that an individual
poses a direct threat in operating dangerous equipment solely because he takes
medication that may, as a side effect, diminish concentration or coordination in some
people.

        An individual does not pose a direct threat solely because [he] takes a medication
        that may diminish coordination or concentration for some people as a side effect.
        Whether such an individual poses a direct threat must be determined on a case-by-
        case basis, based on a reasonable medical judgment relying on the most current
        medical knowledge and/or on the best available objective evidence. Therefore, an
        employer must determine the nature and severity of this individual's side effects,
        how those side effects influence [his] ability to safely operate the machinery, and
        whether [he] has had safety problems in the past when operating the same or
        similar machinery while taking the medication. If a significant risk of substantial
        harm exists, then an employer must determine if there is a reasonable
        accommodation that will reduce or eliminate the risk.

Id.

       Likewise, the EEOC suggests that an employer may refuse to hire a person based
upon his history of violence only if the violent behavior is "recent."

        Example: An individual applies for a position with Employer X. When Employer
        X checks his employment background, she learns that he was terminated two
        weeks ago by Employer Y, after he told a coworker that he would get a gun and
        'get his supervisor if he tries anything again.' Employer X also learns that these
        statements followed three months of escalating incidents in which this individual
        had had several altercations in the workplace, including one in which he had to be
        restrained from fighting with a coworker. He then revealed his disability to

                         National Association of College and University Attorneys
                                                   12
       Employer Y. After being given time off for medical treatment, he continued to
       have trouble controlling his temper and was seen punching the wall outside his
       supervisor's office. Finally, he made the threat against the supervisor and was
       terminated. Employer X learns that, since then, he has not received any further
       medical treatment. Employer X does not hire him, stating that this history
       indicates that he poses a direct threat.

       This individual poses a direct threat as a result of his disability because his recent
       overt acts and statements (including an attempted fight with a coworker, punching
       the wall, and making a threatening statement about the supervisor) support the
       conclusion that he poses a 'significant risk of substantial harm.' Furthermore, his
       prior treatment had no effect on his behavior, he had received no subsequent
       treatment, and only two weeks had elapsed since his termination, all supporting a
       finding of direct threat.

Id. at Question 34 (emphasis added).

         The Occupational Safety and Health Administration (“OSHA”) also has weighed
in on the issue of workplace violence. Specifically, it has admonished that employers
may be cited under the Occupational Safety and Health Act‟s “General Duty Clause,”
Section 5(a)(1) of the OSH Act, P.L. 91-596, for failing to address workplace violence.
Under that Clause, an employer must “furnish to each of his employees employment and
a place of employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.” 29 U.S.C. 654(a)(1)
(emphasis added).

        If “the risk of violence and serious personal injury [in the workplace] are
significant enough to be „recognized hazards,‟” the employer must “take feasible steps to
minimize those risks.” Letter from Roger A. Clark, Director, OSHA Directorate of
Compliance Programs to John R. Schuller (Dec. 10, 1992). An employer, however, will
not be held responsible for unrecognized hazards, such as unanticipated acts of violence
that may “represent random antisocial acts which may occur anywhere.” Id. Not
surprisingly, OSHA admits that determining whether certain hazards are cognizable and
foreseeable involves a highly fact-specific inquiry. Id.

        OSHA has promulgated industry-specific guidance on preventing workplace
violence. Information on preventing such violence in healthcare institutions, which many
colleges and universities maintain, is available at the following Web sites:
http://www.osha.gov/SLTC/workplaceviolence/healthcare/index.html and
http://www.osha.gov/SLTC/etools/hospital/hazards/workplaceviolence/viol.html.

        Best Practices: Colleges and universities should deal with belligerent employees
promptly and forthrightly. Ignoring the problem will reinforce the behavior and possible
cause the belligerence to increase.

       Of course, institutions should not punish disabled employees who engage in
offending conduct more severely than they punish similarly situated non-disabled

                        National Association of College and University Attorneys
                                                  13
workers. And, if the employee did what he did because of a disability, the institution
may have to demonstrate that the disciplinary measures that it imposed are job related
and consistent with business necessity.

       D.      Requiring Private College and University Employees to Submit to Drug
               and/or Alcohol Tests

      Mandatory drug and alcohol testing programs can be a strong deterrent to
workplace drug and alcohol use.

                Federal law generally does not limit a private employer's right to test
employees for the presence of illegal drugs and alcohol. But if the results of a drug test
indicate the presence of lawfully prescribed drugs, the employer must keep such
information confidential, in the same way that the ADA requires employers to keep all
medical information confidential. See EEOC Technical Assistance Manual on
Employment Provisions (Title I) of the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq. Also, employers must not administer such tests in a discriminatory
manner.

        Several states have enacted more detailed limitations. See, e.g., Conn. Gen. Stat.
§ 31-51t et seq. (limit drug tests by private employers to situations in which there is a
reasonable suspicion that employee‟s job performance is or could be adversely affected
by drugs or alcohol, and only allows random testing under limited circumstances); Iowa
Code § 730.5 (allows drug tests by private and public employers as part of regularly
scheduled physicals with 30 days advance notice or based on probable cause that
employee is working while impaired); Me. Rev. Stat. Ann. Tit. 26, § 681 et seq. (requires
prior approval by state labor department of written drug test policy, allows tests only
when there is probable cause to believe that employee is impaired, random testing of
employees whose substance abuse might endanger coworkers or the public, or random
testing as permitted by union contract); Minn. Stat. § 181.950 et seq. (requires written
drug and alcohol test policy to be provided to all applicants and employees in advance,
and limits employee testing a component of a routine physical exam conducted at most
annually with two-weeks‟ notice; based on reasonable suspicion that employees is under
the influence, has violated the written drug testing policy, or has been injured or caused
an injury or work-related accident; random testing for employees in safety-sensitive
positions; or testing of employee referred by employer to a chemical dependency
treatment program under an employee benefit plan), Utah Code Ann. § 34-38-1 et seq.
(private employers may require drug/alcohol testing as a condition of employment or
continued employment so long as the employer prepares and disseminate to employees a
written drug testing policy and the employer and management themselves are
periodically tested); Vt. Stat. Ann. tit. 21, § 511 et seq. (private employers may not
require random drug testing except as required by federal law, but may conduct drug
testing of employees based on probable cause that an employee is using or under the
influence of drugs and there is a rehabilitation program available for the employee).
Other states regulate testing procedures. See, e.g., Fla. Stat. § 440.101; Haw. Rev. Stat. §
329B-1 et seq.; La. Rev. Stat. § 49:1001 et seq.; Md. Code Ann. Health-Gen. § 17-205 et
seq. (sets forth procedures for drug tests allowable based on legitimate business purpose);

                        National Association of College and University Attorneys
                                                  14
Neb. Rev. Stat. § 48-1901 et seq.; Ore. Rev. Stat. § 438.010 et seq. (drug testing
procedures), §§ 659.840, 659.990, 659A-300 (limitations on and procedures for the
administration of breathalyzer tests); Tex. Labor Code § 411.091 et seq., 28 Tex. Admin.
Code § 169.1 et seq. Additionally, mandatory drug and alcohol testing may raise state
constitutional privacy concerns. See, e.g., Luck v. Southern Pacific Transp. Co., 267 Cal.
Rptr. 618 (1st Dist. 1990), reh’g denied and modified on other grounds, 5 BNA IER Cas.
414 (Mar. 23, 1990). Private universities and colleges should consult with their local
counsel about such restrictions.

         Private institutions also should be mindful of obligations that they may have
under the federal Drug-Free Workplace Act, 41 U.S.C. § 701, et seq. With few
exceptions, the Act applies to employers with at least one federal contract amounting to
more than $100,000. Among other things, the Act requires covered employers to (1)
certify that they provide a drug-free workplace; (2) publish a statement identifying
prohibited drug-related behavior and the ramifications for engaging in such behavior; (3)
establish a drug-free awareness program for employees; (4) require employee notification
of criminal drug convictions arising out of workplace drug use; and (5) notify the federal
government and discipline employees regarding such convictions.

        Guidance for developing drug-free workplace policies is available at the
Department of Labor's Web site: http://www2.dol.gov/elaws/asp/drugfree/screenfq.htm.
Another worthy site for information and sample policies is:
http://www.drugfreeworkplace.gov/

         Best Practices: Before implementing a drug or alcohol testing policy, private
institutions should identify the reasons for adopting such a policy and the parameters of
the testing policy, including whether all employees will be subjected to testing, under
what circumstances, and how frequently. The institution should consider whether it
would be more appropriate to test employees only in the event of reasonable suspicion of
drug or alcohol abuse, such as when there has been an accident and/or injury. To the
extent that testing is limited to certain categories of employees (e.g., high safety-risk
positions), the institution should be prepared to justify such limitations, and should avoid
requiring testing for low-level employees only. There should be a detailed testing policy
informing applicants and employees about the testing process and the ramifications for
verified positive drug tests.

       E.      Requiring Private College and University Employees to Submit to
               Counseling

       Most employers follow a formal or informal progressive discipline policy,
applying increasingly severe disciplinary measures for successive employee infractions.
Sometimes, the employer may require the offending employee to consult with an outside
professional, such as a psychologist.

       While well intended, such a requirement could expose the employer to problems
under the ADA.


                        National Association of College and University Attorneys
                                                  15
       First, such counseling could constitute an ADA “medical examination.” And,
under the ADA, employers may require employees to submit to such an examination only
when it is job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A).

        According to the EEOC, a medical examination is any procedure that seeks
information about an individual‟s physical or mental health. Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees under the
Americans with Disabilities Act, Question 2 (July 2000). The EEOC has identified
several factors that should be considered in determining whether a procedure fits that
definition.

              Whether the procedure is administered by a healthcare
               professional.
              Whether the procedure is interpreted by a healthcare professional.
              Whether the procedure is invasive.
              Whether the procedure measures an employee‟s performance of a
               task or measures his physiological response to performing the task.
              Whether the procedure is designed to reveal an impairment or
               physical or mental health.
              Whether the procedure is normally given in a medical setting.
              Whether medical equipment is used.
Id. at Question 2.

       As to when such an examination is job-related and consistent with business
necessity the EEOC has this to say:

       Generally, a . . . medical examination of an employee may be 'job-related
       and consistent with business necessity' when the employer 'has a
       reasonable belief, based on objectionable evidence, that: (1) an
       employee‟s ability to perform essential job functions will be impaired by a
       medical condition; or (2) an employee will pose a direct threat due to a
       medical condition.' Disability-related inquiries and medical examinations
       that follow-up on a request for reasonable accommodation when the
       disability or need for accommodation is not known or obvious also may be
       job-related and consistent with business necessity. In addition, periodic
       medical examinations and other monitoring under specific circumstances
       may be job-related and consistent with business necessity.

Id. at Question 5.

       Second, depending on the type of counseling involved, requiring an employee to
submit to counseling could expose the employer to a claim that it regards the employee as
disabled. Thus, making the employer an easy target for a discrimination suit if it does
anything that the employee perceives as adverse.

                        National Association of College and University Attorneys
                                                  16
Best Practices: Requiring employees to submit to counseling exposes a college or
university to significant risks, without significant evidence of reward. Accordingly, those
institutions could reasonably decide against imposing such a requirement.

        F.     Requiring Employees to Submit to Fitness for Duty Tests

      Requiring an employee to submit to a proper fitness for duty test, unlike requiring
an employee to submit to counseling, generally does not expose to liability under the
ADA's regarded as disabled prong.
       The Third Circuit's decision in Tice v. Centre Area Transportation Authority, 247
F.3d 506 (3rd Cir. 2001) is instructive.
       Tice was a Transportation Authority employee who took a leave of absence
because of a back problem. Before allowing him to return to work, the Authority
required Tice to submit to an independent medical examination. Thereafter, the
Authority discharged him, purportedly because it regarded him as disabled.
        The district court granted the Authority's summary judgment motion. And the
Third Circuit affirmed. It stressed that requiring an employee to submit to an legitimate
fitness for duty examination, without more, does not establish liability under the ADA's
regarded as prong.
        [A] request for an IME that complies with the [the ADA's] statutory restrictions
        will never, in the absence of other evidence, be sufficient to demonstrate that an
        employer 'regarded' the employee as substantially limited in a major life activity,
        simply because an examination that is 'job-related' and 'consistent with business
        necessity' must, at minimum, be limited to an evaluation of the employee's
        condition only to the extent necessary under the circumstances to establish the
        employee's fitness for the work at issue. . . . A request for such an appropriately-
        tailored examination only establishes that the employer harbors doubts (not
        certainties) with respect to an employee's ability to perform a particular job.
        Doubts alone do not demonstrate that the employee was held in any particular
        regard. . . and as we have explained, an employee's inability to perform a
        particular job is not a disability within the meaning of the [ADA].
Id. at 515.
        Likewise in Kroka v. Chicago, 203 F.3d 507 (7th Cir. 2000), the Seventh Circuit
held that the Chicago Police Department ("CPD") was not liable under the ADA's
regarded as prong simply because it required a police officer experiencing mental health
difficulties to submit to a medical examination and to be supervised by a physician.

        Krocka further argues that the fact that CPD required him to undergo a medical
        evaluation and to continue to be supervised by a physician is evidence that CPD
        regarded him as disabled. We have stated that where inquiries into the psychiatric
        health of an employee are job related and reflect a 'concern [ ] with the safety of ...
        employees,' the employer may, depending on the circumstances of the particular
        case, require specific medical information from the employee and may require
        that the employee undergo a physical examination designed to determine his

                         National Association of College and University Attorneys
                                                   17
        ability to work. . . . The position of Chicago police officer certainly presents
        significant safety concerns, not only for other CPD employees but for the public
        at large. It was entirely reasonable, and even responsible, for CPD to evaluate
        Krocka's fitness for duty once it learned that he was experiencing difficulties with
        his mental health. CPD did not make broad and unfounded assumptions about
        Krocka's fitness for duty based on his mental illness or the medication he was
        taking to mitigate that condition. Instead, it performed an individual evaluation of
        his particular situation and determined that he was capable of working as a
        Chicago police officer.
Id. at 515.
Best Practices: To avoid liability under the ADA's regarded as prong, colleges and
Universities should require employees to submit to a fitness for duty examination only
when the examination is job related and consistent with business necessity. That is, in
the EEOC's view, at least when
       The institution has a reasonable belief, based on objectionable evidence, that: (1)
        an employee‟s ability to perform essential job functions will be impaired by a
        medical condition; or (2) an employee will pose a direct threat due to a medical
        condition, or
       The examination follows-up on a request for reasonable accommodation when the
        disability or need for accommodation is not known or obvious also may be job-
        related and consistent with business necessity.



LDR/112421.4




                         National Association of College and University Attorneys
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