but your state’s disability discrimina- tion law? (Tis is becoming increasingly important with the expansion of medical marijuana and the opioid crisis).


Case #5. EEOC v Bell Leasing, Inc.15


d/b/a


Bell Lexus ($45,000.00) Sara Torholm applied for and was offered a job as a product specialist and salesperson with Bell Lexus. Torholm suffers from atention deficit disorder (ADD), for which she takes a prescribed medication. Bell Lexus had a policy and/or practice of uniformly refusing to employ any applicant who tests positive for any of the classes of substances on a list identified by Bell Lexus, regardless of whether the positive drug test resulted from medication taken to treat a disability. Torholm tested positive for one of the prohibited classes of drugs. She offered to provide documentation of her prescription and to change her medication. Tose offers were refused. Tis action was filed August 25, 2016,


and a consent decree was entered on June 8, 2017. Bell Lexus agreed, among other things, to pay Torholm $45,000.00.


What would you do? Tis case has many similarities to Case #2 (Happy Jack’s), and not just the setlement amount. But here, consider the policy approach of applying the rule to everyone that applies for a job, regardless of the nature of the job duties or the person’s ability to perform the essential functions of the job. 1. Do you need to review your policy to make sure you don’t make the same mistake here?


2. Are your procedures appropriate in response to the expanded applica- tion of the ADA and state disability discrimination rules?


3. Do you need to provide related train- ing to your management staff?


14 datia focus 15


As we started the discussion, it is very


dangerous to be uninformed of the rules, regulations, and requirements that impact your company in each of the states in which you operate. I know it can all seem overwhelming, but the rules that you must follow are essentially your blueprint for success and possibly even incredible amounts of financial savings! As always in these situations, it is best


to consult with your legal resources to make certain your program complies. ❚


Te Drug Screening Compliance Institute


(“DSCI”) is NOT a law firm. Te information contained herein is for general informational purposes only and is not intended to and does not constitute legal advice.


References 1


This was actually said to me once by a regulated employer in South Carolina.


2 3 4 That’s why we have courts. Court of Appeals of Georgia, A18A0267, June 1, 2018.


Based on June 20, 2018, telephone conversation with one of plaintiff’s attorneys.


5


OCGA §34-9-17(b). OCGA § 34-9-17 (b) (2), provides in relevant part that: “If any amount of marijuana . . . is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana[.]”


6 7 https://www.eeoc.gov/eeoc/newsroom/release/5-18-18.cfm


Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77 (1981)


8


16-2012-CA-013343 (17 FJVR 11-05-2017) (FL Cir. Ct., Duval County) (Currently on appeal).


9


2017 WL 2665105 (Case No. C16-0020-JCC; 6-21-17) (Currently on appealed).


10


There was a dispute over whether Stewart was impaired. The Court determined that it was “more likely than not” that Stewart exhibited signs of impairment, but also concluded that that there was no evidence that she was “unable to perform her job.”


11


The Return to Work Agreement made no accommodation for prescribed medicines.


12 Wash. Rev. Code §§ 49.60.030(1), 49.60.180(1) 13 Wash. Rev. Code § 49.60.040(7)(a).


14


The Court noted that “There are four elements of a reasonable accommodation claim: (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.”


Civ. Action No. 2:16-cv-02848-DKD (AZ Fed. Dist. Ct. 2017, Consent Decree.)


summer 2018


William J. Judge, JD, LL.M., has over 33 years of experience in the workplace drug and alcohol testing industry. He is a past co-chairman of the Illinois


State Chamber of Commerce Drug-Free Workplace Program, a 10-year member of the American College of Occupational and Environmental Medicine (ACOEM) MRO Faculty, a past advisor to the American Society of Addiction Medicine (ASAM) MRO Committee, a 5-year participant in the White House Office of National Drug Control Policy (ONDCP) Regional Student Drug Testing Summits, and a participant in the 1988 White House Conference for a Drug Free America. Bill has been involved in many workplace drug-testing court cases at all levels, including the 1989 United States Supreme Court decision, Railway Labor Executives’ Association v. Skinner. Bill has edited and written numerous articles and publications, including a reference manual for the motor carrier industry entitled, “Drug Testing: Motor Carrier Compliance Manual,” published by J.J. Keller & Associates, “Omnidex,” “Part 40 Merged,” and co- authored with attorney Tommy Eden, “Doing It Right: DRUG-FREE SCHOOL TESTING.” Bill co-founded Info-Lab, Inc., and managed Workplace Health Co-Op, a substance-abuse program administrator. During his tenure with Info-Lab, Inc., he co- owned and operated Info-Meth, a DHHS- certified laboratory located in Peoria, IL.


Bill is the co-founder of the Drug Screening Compliance Institute (DSCI), which focuses on state, federal, and subject-specific com- pliance training, education, and consulting (www.askbilljudge.com).


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