The Cost of


Non-Compliance is real and it can be substantial. Yes, the rules can be complicated but they are your blueprints for protection.


would be wrong. Tere have been and continue to be lawsuits on nearly every word of the sections set out above. And these are just a few examples of what is contained in the ADA and its regulations. Tese lawsuits have resulted in jury


awards, judgments, setlements and consent decrees such as: • 2017—M.G.H. Family Health Center d/b/a Muskegon Family Care agreed to pay $21,500 aſter an individual worked five weeks without incident as an outreach enrollment coordinator but then had a “medical specialist” place a medical hold on her file due to medications she was taking following a pre-employment physical.


• 2016—Georgia Power entered into a consent decree with the EEOC, which among other things required payment of $1,586,500. The Company agreed to revise its policies and no longer take employment action based upon an individual’s use of a “legal drug or medication prescribed to that individual unless and until [the Company] has conducted an individualized assessment” of the person’s ability to safely perform the essential functions of the job.


46 datia focus


• 2016—Xerox State Healthcare, LLC paid $35,000 as part of a consent decree aſter it failed to reasonably accommodate an individual with end stage renal failure who was incapable of providing a urine sample as required for a pre-employment drug test.


• 2016—Randstad, UP, LP agreed to pay $50,000 aſter it withdrew an offer of employment once finding out an applicant was on supervised methadone.


• 2015—The Pines of Clarkston, LLC agreed to pay $42,500 after failing to enter into the required interactive reasonable accommodation process when an employee tested positive for marijuana being used medically to treat epilepsy. Tere are many more examples that could be listed here.


State Human Rights Laws: A complete review of this subject is beyond the scope of this article. Please be aware that each state has some form of Human Rights law, which in many ways follows or expands an employer’s legal obligations beyond the ADA and its precedent. As an example, the recent Washington Appellate Court decision Clipse v. Commercial Driver Services, Inc. filed under “Washington Law Against Discrimination” (Chapter 49.60 RCW) upheld a jury verdict and award of more than $85,000. In that case, an individual was hired as a commercial vehicle driving instructor who was on a medically supervised methadone program. Te methadone was taken for pain but the employer “perceived” that he was an illegal drug user and fired him. Don’t overlook your state


Human Rights law before you make employment decisions.


Conclusion (or beginning): We have only had a chance to mention a small part of the compliance, state mandatory law, and ADA issues you might face. Many others impact your program


12 13 14 15 16


every day. We hope you see that ignoring the rules is not a good solution. Te Cost of Non-Compliance is real and it can be substantial. Yes, the rules can be complicated but they are your blueprints for protection. All statutes, regulations and court


decisions discussed are available through Encompass Compliance Corp. at www.emcompinc.com. ❚


References 1


This is the total amount recovered by the EEOC in 2016 for employees discriminated against in the workplace. See EEOC Fiscal Data Report—2016 at: https://www.eeoc. gov/eeoc/newsroom/wysk/2016_highlights.cfm


2


Failure to follow federal rules can also be very costly. For example, in 2016 in McCall v. Coastline Distributing, Inc., the jury returned a verdict of $2.1 million when the employer failed to enroll the driver in a drug testing program; the driver tested positive for methamphetamines and opioids after the accident.


3


This case began in 2003 and, after post-trial motions and several appeals, finally ended on December 30, 2016.


4


While working and in severe pain, Tomick called his wife and told her he would be home for lunch as usual. He added that the helper Trudelle had promised did not show at the appointed time and place. His wife called Trudelle and said her husband was in severe pain and she feared he was “going to have a nervous breakdown.” When the employee called Trudelle, he was told that if he couldn’t do the “f***ing job” to just bring the truck back.


5


http://www.cdc.gov/homeandrecreationalsafety/rxbrief/; Note that this is a problem worldwide. See https:// www.mailman.columbia.edu/public-health-now/news/ nonmedical-use-prescription-drugs-among-young- people-growing-global-concern, showing that, depending on the country, there has been as much as a 550% increase in non-medical use of prescription opioids.


6


Journal of Occupational and Environmental Medicine, August 2012.


7


https://www.cdc.gov/nchs/fastats/drug-use-therapeutic. htm; In 2012, 259 million opioid prescriptions were written, enough for every adult in America to have a bottle. https:// www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm


8 9 10


https://www.cdc.gov/nchs/fastats/drug-use-therapeutic.htm https://www.cdc.gov/nchs/fastats/drug-use-therapeutic.htm


https://nccih.nih.gov/research/statistics/NHIS/2012/ key-findings


11


https://www.researchgate.net/profile/Xuguang_Tao/ publication/229437059_The_Effect_of_Opioid_Use_ on_Workers'_Compensation_Claim_Cost_in_the_ State_of_Michigan/links/02e7e533ace8492624000000/ The-Effect-of-Opioid-Use-on-Workers-Compensation- Claim-Cost-in-the-State-of-Michigan.pdf; Workers on opioids are also less likely to return to work. See, https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC4204477/pdf/ nihms530252.pdf; also Deyo RA et al. Opioids for low back pain. BMJ. 2015 Jan 5;350


http://www.jpain.org/article/S1526-5900(12)00559-7/pdf 42 U.S.C. Sec. 12112(a).


42 U.S.C. Sec. 12111, Title I Employment. 42 U.S.C. Sec. 12102(1).


42 U.S.C Sec 12114 and Sec. 12210 spring 2017


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