August 19, 1999
Dear Human Resource Professionals, Managers, and Employees:
In this newsletter I would like to address a decision of the Court of Appeal that will impact the settlement of some civil service appeals, to address the Supreme Court's recent decisions regarding what constitutes a disability under the Americans with Disabilities Act, and to address a decision of the United States Fifth Circuit Court of Appeal regarding "current drug use" under the Americans with Disabilities Act.
In the First Circuit case the employee was terminated and paid for 300 hours of accrued annual leave in accordance with Civil Service Rules. Before the case came for trial it was settled. In the settlement the employee's termination was rescinded, a 45 day suspension was imposed, the employee was demoted with a reduction in pay, and the appointing authority agreed to pay back wages "subject to the suspension and appropriate set-off required by law." The settlement did not address the previous payment for 300 hours of annual leave.
Upon payment of the back wages the appointing authority deducted the amount it had previously paid for the 300 hours of annual leave, and when the employee attacked this deduction in another civil service appeal the appointing authority argued that Rule 11.10 applied because the employee had, in fact, been "re-employed in a classified position" such that he was required to pay back the value of that annual leave. The Referee adopted this position and denied the employee's appeal. The Court of Appeal reversed.
The Court of Appeal concluded that the appropriate rule to apply was Rule 13.38 (a) which provided that when a separation is overturned and the employee returns to work the employee "at his sole option may repurchase all or part of the annual leave balance held by him at his separation the value of which was paid to him . . ." The Court of Appeal concluded that because the termination of the employee had been rescinded, it was if it had never occurred and it could not be properly concluded that he had been re-employed. The Court applied Rule 13.38 and granted appellant's appeal finding that appellant had the option of either keeping the payment for the 300 hours or paying back that amount for restoration of the 300 hours. The Court also awarded attorney fees in the amount $850.00.
The case is Sparks vs. Department of Public Safety and Corrections, 98 CA 1116, and is designated not for publication. Please do not call and ask that we mail a copy as there are too many of you. You are welcome to stop by our offices and pick up a copy.
The lesson here is an easy and direct one. In all settlement agreements please address the amount of any monies previously paid for unused annual leave to the employee.
The brief summary of the primary holding of the decisions of the United States Supreme Court regarding a disability under the Americans with Disabilities Act is that the individual's impairment should be evaluated with reference to measures that mitigate that impairment. A brief review of each case should be helpful in applying this concept.
The lead case is Sutton, et al. vs. United Airlines Inc., No. 97-1943, decided June 22, 1999. In that case two twin sisters with uncorrected vision of 20/200 or worse sought to become global airline pilots with defendant. With eyeglasses and/or contact lenses their eyesight was identical to individuals without similar impairments as theirs. The airline, however, declined to allow them to become global airline pilots because the airline's minimum requirement of uncorrected vision was 20/100 or better. The sisters sued asserting that they were disabled under the ADA, or, alternatively, that the airline perceived them as disabled, and that the airline was in violation of the ADA for refusing to employ them.
In Murphy vs. United Parcel Services, No. 97-1992, decided June 22, 1999, the plaintiff was a mechanic with high blood pressure which was kept under control through medication, but which caused him to be fired from his job at UPS because he had to drive commercial vehicles. The Department of Transportation's requirement for such a driver is that the driver have "no clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." The driver was not asserting a violation of these regulations, but a violation of the ADA, because, he alleged, he was disabled within the meaning of the law.
The third case is Albertson's, Inc vs. Kirkingburg, No. 98-591, decided June 22, 1999. The facts of this case draw from each of the previous two in that the plaintiff was a truck driver with limited vision because one eye was essentially useless. In Mr. Kirkingburg's case, no appliance or medication could correct this circumstance, but his "brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability", and the Court saw no basis for distinguishing between measures taken with artificial aids and measures taken with the bodies own system, whether done so consciously or not.
The Court concluded in all of these cases that because the requirement of the law is that the subject impairment substantially limit a major life activity, the impact of the impairment on a major life activity had to be decided on an individualized basis. That is, the Court concluded it was not appropriate to simply identify a condition that if endured by an individual would make them disabled within the meaning of the ADA, but that the condition's effect upon an individual's ability to engage in major life activities had to be determined. In making such determination the effect of the corrective measures taken to treat the impairment had to be considered in order to determine whether a major life activity was substantially limited by the condition as treated and/or corrected. The major life activity at issue in all of these cases was that of working, and the Court recognized that a substantial limitation occurred in this category of major life activity only when the individual could not perform a broad range of jobs.
One reminder here. While a person who is HIV positive might not appear to be limited in any activity, the U.S. Supreme Court specifically found in 1998 that a person who is HIV positive has a disability covered by the ADA. The major life activity that is at issue in such a case is that of reproduction.
In the Sutton case involving the sisters who wanted to be global airline pilots, the Court found that their corrected vision prohibited them only from flying internationally while carrying passengers, and that they were not prohibited from either piloting other commercial aircraft or from working in a broad range of jobs. Similarly in regard to Mr. Murphy and his high blood pressure, he was not prohibited from working as a mechanic, but only as a mechanic where he had to drive commercial vehicles regularly. The same analysis obtained regarding Mr. Kirkingburg. His brain had compensated to a significant extent and he could work in a broad range of jobs, but could not drive commercial trucks. None of the three were found to be disabled within the meaning of the Americans with Disabilities Act.
Further, the Court found that the employer of each did not consider them to be limited from performing work in a broad range of jobs, but only in the particular job under scrutiny. The Court recognized that an employer was free to fix physical characteristics or medical conditions necessary for employment so long as those conditions were not disabilities under the ADA.
A note here: The Court also recognized that while it was necessary to take into account the impact on the subject impairment of corrective measures there was also a requirement that the employer take into account the effect of the corrective measures, themselves, upon a major life activity. For example, the Court recognized that anti-psychotic drugs could cause a variety of adverse affects including painful seizures. If the effects of the mitigating measures, themselves, have a substantially limiting affect upon a major life activity, then the individual would be considered to be disabled under the ADA.
The Fifth Circuit case on the current use of drugs is Zenor vs. El Paso Health Care System Limited, No. 98-50063, decided May 28, 1999. The Americans with Disabilities Act excludes from its coverage one "currently engaging in the illegal use of drugs." The ADA also has a "safe harbor" provision for drug users which states that a person should not be excluded as a qualified individual with a disability where they have successfully completed a "supervised drug rehabilitation program" or where they are participating in such a program and, in either case, is no longer engaging in drug use. These issues were at issue in the Fifth Circuit case.
There, Mr. Zenor was employed as a pharmacist and was addicted to cocaine. The employer became aware on August 15th of such addiction when Mr. Zenor admitted he could not report to work because he was under the influence of cocaine. The next day Mr. Zenor entered an in-patient rehabilitation program and, also, was advised by his employer that he was entitled to a twelve-week leave of absence under the Family and Medical Leave Act. On September 20th he was visited at the in-patient facility and was told that he would remain an employee until his medical leave expired, and that he would then be terminated. Mr. Zenor completed the residential portion of his treatment on October 9th, and was formally terminated on November 24th. He claimed that at the time of his termination he was not a current user of drugs, but was considered to be disabled under the ADA by his employer due to past drug use.
The Court concluded that being a current user of drugs did not mean that "a drug user have a heroin syringe in his arm or a marijuana bong to his mouth at the exact moment" of the termination, but that he had been free from such use for a "significant period of time" such that there could be a "reasonable belief" that a person's' drug use was not current or an ongoing problem. The Court noted that other courts have concluded that persons who use illegal drugs in the weeks and months prior to being fired from their jobs were considered current drug users for purposes of the ADA, that cocaine addiction has an extremely high relapse rate, and that completion of "the residential portion of his treatment was only the first step in a long-term recovery program." The Court used this analysis to find that Mr. Zenor was not protected by the ADA's "safe harbor" provisions because, quoting from a H.R. Conference Report "this provision does not permit persons to invoke the Act's protection simply by showing that they are participating in a drug treatment program", but "the significant period of time" and "reasonable belief" concepts of freedom from current use are applicable. This approach is "better aligned with Congress' explicit statement that a plaintiff may not evade termination merely by entering into a rehabilitation program without first showing a significant period of recovery."
By way of summary on this point, a person must demonstrate themselves free of drug use for a significant period of time that may be months in length before they can be reasonably perceived free from "current use of drugs" or subject to the state harbor provisions of the ADA.
Additionally, as you might now gather from the decisions of the Supreme Court's discussed herein the Court found that the employer did not consider Mr. Zenor substantially limited from performing a broad range of jobs, but only that of a pharmacist.
Sincerely,
Robert B. Boland, Jr.
General Counsel