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Suspect employee has relapsed into drug use? Never say so without proof

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in Firing,Human Resources

Under the ADA, it’s illegal for employers to discriminate against employees who have a history of drug addiction but who aren’t current users. That ADA protection includes not being “perceived” as addicted or having relapsed.

Before you or anyone else in management comments on suspicions that an employee has backslid, make sure you have evidence to back the claim.

Recent case: Allison worked as a nurse and became addicted to morphine she took from her workplace. With her license in danger and facing criminal charges, she agreed to participate in a state nursing board diversion program. Her nursing license was suspended while she received treatment.

Eventually, she was reinstated under tight restrictions and the criminal charges were dismissed. The terms of the agreement that reinstated her license included a provision requiring her to disclose her past addiction to any prospective employer.

She went to work for Presbyterian Hospital in Charlotte after telling officials there about her past problems. All went well until she developed new medical problems, including lupus, attention deficit disorder and depression. She took FMLA leave.

After returning to work, Allison was forced to undergo a drug test after someone telephoned a hospital hotline, claiming Allison was stealing drugs and taking them. During a suspension pending an investigation, managers discovered medical records errors Allison may have made.

Then someone sent an email with the subject line “Allison [last name] - Diversion Tracking.” The email stated, “There are obviously issues.”

Allison was fired over the records errors after her drug tests came back negative.

She sued, alleging she had been treated as if she were disabled and then fired based on that belief.

As evidence, she pointed to testimony from another employee who allegedly overheard Allison’s manager declaring she had been fired because the manager believed Allison had relapsed into drug use despite the negative drug test.

The court said Allison had direct evidence that she was singled out because of past drug use and suspicion she was again using drugs. The case will now go to trial. (Scott v. Presbyterian Hospital, No. 3:11-CV-383, WD NC, 2012)

Advice: Supervisors must understand that they should never speculate on an employee’s disability. If the hospital had simply suspended Allison (with pay) pending the investigation and didn’t send the email or make the comment Allison alleges, there would have been no problem. The hospital could have justified termination based on poor performance.

Certainly, after the test came back negative, no further mention of possible drug use was justified.

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