Gotta Pass the Smell Test, Too

30 June 2014 Labor & Employment Law Perspectives Blog

A Florida court recently let a claim proceed under the Americans with Disabilities Act (“ADA”), even though the employee had been terminated for a positive drug test and the ADA has a specific exclusion for current drug users. In legal terms, the court denied the employer’s initial motion to try and have the case dismissed – so this is not a decision about whether the employee’s claim wins – but simply a decision concluding that the former employee has presented a possible claim. However, in more practical terms, the employer’s actions may not have passed the court’s smell test.

Basing a termination on a positive drug test may feel like a slam dunk in terms of legitimate reasons for a termination. So why did it not work here to require immediate dismissal of the claim? It is likely because of some alleged facts and some legal ambiguity, but also probably because the employee’s version of the facts simply raised too many red flags.

The employee’s story painted a picture of being picked on and held to a different standard. According to his allegations, the employee had previously complained about racial remarks from a supervisor and claimed that after his complaint things worsened. The greater scrutiny and unwarranted discipline prompted a flare-up of his depression and anxiety, and his drug use was sparked by the these symptoms. Put differently, the employee blamed his drug use on the disability and blamed his disability flare-up on the employer’s bad actions.

In terms of the ADA, the employee requested the discipline for the drug test be waived as a reasonable accommodation or that he be provided with counseling. He alleged that white, non-disabled employees were not given discipline and/or received counseling in similar situations with positive drug test results. Because others with similar drug test results were allegedly not terminated, the employee claimed the real motivation for his termination was his disability.

Why would the court not rely on the ADA exclusion for current drug users? One reason is the statute does not define what that means. This court, relying on other decisions, said that instead of a bright line test, the real issue is “whether the drug use was recent enough” to let the employer reasonably conclude that ongoing drug use is a problem. In the recent Florida decision, the employee alleged he had never been under the influence while on duty, had utilized the Employee Assistance Program and had not used drugs for a significant period of time (the decision does not give details about the type of drug at issue or possible time frames for use). The court decided it was “plausible” that the employee was not a “current” user at the time of the termination.

Just a reminder – even a really good reason for termination that feels as though it is tied up with a bow can look pretty bad if the rest of the package is sloppy.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services