Aſter reluctantly taking a Breathalyzer
The Americans with Disabilities Act (ADA) prohibits employers from changing the terms of employment for a person with a disability just because of that disability, 42 U.S.C. Section 121l2(a).
test (negative), a urine test (negative), and a hair-sample test, Hudson asked Perry what the reasonable suspicion was for the testing and requested that Perry provide him with any records supporting reasonable suspicion. According to Hudson’s complaint, Perry became infuriated and retorted, "It does not work like that. Tere are no records. I don't have to give you copies of anything." When Hudson responded by showing Perry the Florida Drug Free Work Place Act, Perry allegedly taunted him, asking what he was going to do. During a later unemployment hearing
Perry contradicted herself saying that she had tested Hudson "on a whim, a mere hunch," and that she had been determining who to drug test in that manner "for years." A federal district judge in South Florida
ruled that Perry's drug test directive wasn't supported by individualized suspicion under the Fourth Amendment to the U.S. Constitution. Te Judge held that “with respect to drug-testing of public employees… in the absence of any suspicion at all, such a personal and abusive use of the government's power to conduct drug testing so obviously violates Fourth Amendment rights that no case law stating this proposition was necessary.” Tis case is Hudson v. City of Riviera, FL.
LANDMINE #3: Steps to Avoid or Defuse: • Define reasonable suspicion in your policy • Create two reasonable suspicion checklists (contemporaneous and chronic)
• Train your supervisors on reasonable suspicion and your two checklists
• Observations in writing of two trained supervisors will eliminate personal bias issues
52 datia focus
LANDMINE #4: Disciplining Employees Who Voluntarily Come Forward Te Facts: Anthony DePalma was Assistant Fire Chief for the City of Lima, OH, when he developed kidney stones and became addicted to prescribed narcotic pain medications. DePalma voluntarily checked himself into Sheppard Hill, an addiction treatment center. DePalma had not violated any work rules and his performance and behavior at work were excellent. DePalma had been at Sheppard Hill for one week when be was told by the Lima Fire Chief to sign a Last Chance Agreement (LCA) or he would be fired, which DePalma signed. Te following year, DePalma was hospitalized with a kidney stone and was given painkillers while awaiting surgery. When he returned to work, he was required to submit to a drug test, which revealed the presence of the painkillers. Te City terminated DePalma pursuant to the signed LCA. DePalma appealed and eventually the
Ohio Court of Appeals reversed, agreeing with DePalma that the City should not have been permited to use his voluntary act of seeking substance abuse treatment as a basis for changing the terms of his employment. Te Americans with Disabilities Act (ADA) prohibits employers from changing the terms of employment for a person with a disability just because of that disability, 42 U.S.C. Section 121l2(a). Although a qualified individual with a disability does not include an employee currently engaging in the legal use of drugs (Section 112114(a)) an individual is considered qualified if he or she is participating in a supervised rehabilitation program and is no longer engaging in such use. Because the LCA was invalid under the ADA, the Court found that the subsequent discipline for its violation could not stand. Te case is DePalma v. City of Lima.
Spring 2016
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