Is Internet addiction a protected disability?

There is no doubt that addiction is a protected disability under the ADA and Ohio's parallel law. The Department of Labor provides the following helpful summary of the impact of the ADA on employees who have problems with drugs and alcohol:

• Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.
• The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements).
• Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.
• Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.
• Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.)
• Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation.
• A person who is an alcoholic may be an "individual with a disability" under the ADA.
• Employers may discipline, discharge or deny employment to alcoholics whose use of alcohol impairs job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
• Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
• Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to alcohol and drug use in the workplace.
• The ADA does not protect casual drug users; but individuals with a record of addiction, or who are erroneously perceived as being addicts, would be covered by the guidelines.

The bottom line is that the ADA does not protect the impaired, but does protect non-impaired addicts, those who are perceived as addicts, and those who have a record of past addiction. In other words, an employer can terminate an employee who is impaired on the job or tests positive for drugs or alcohol on the job, but cannot terminate someone who is in rehab, for example.

What about other addictions? From Engadget Mobile comes this story about email addiction:

Considering the plethora of facilities that have opened just in the past few years to deal solely with individuals that have become undoubtedly addicted to video games, the internet and all things Hello Kitty (we jest, we jest), we're not surprised one iota to hear that uncontrollably texting / e-mailing could soon become "classified as an official brain illness." According to a writeup in the latest American Journal of Psychiatry, internet addiction is a common ailment "that should be added to psychiatry's official guidebook of mental disorders." More specifically, Dr. Jerald Block, a psychiatrist at the Oregon Health and Science University in Portland, even goes so far as to argue that said phenomenon (neglecting basic drives to spend more time online) be "included in the [next edition of] Diagnostic and Statistical Manual of Mental Disorders, psychiatry's official dictionary of mental illnesses."

Here's a preview of what might be coming for employers:

• Employer to employee, "Our IT department tells us you've spent 20 hour a week for the past 3 months surfing the Internet on non-work related sites. We're going to have to let you go.
• Employee responds: "But I'm addicted to the Internet."
• Employer: "Sorry, your non-work use of the Internet is stealing."
• Employee's lawyer: "We're suing you for disability discrimination."

Likelihood of success aside, this scenario is not all that improbable to occur. Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Carnival of HR is available

Wally Bock's Three Star Leadership Blog has posted this fortnight's Carnival of Human Resources. To quote Wally:

Stroll down the midway and you will find posts full of wit and wisdom that will delight, amaze, and educate. But wait, there's more. You'll also discover new blogs you'll want to read.

Workers' comp retaliation case shows importance of careful documentation

If you don't want it read by your spouse, seen by your boss, considered by a jury, or splashed on the front page of the newspaper, do not write it down or send it in an email.

Cunningham v. Steubenville Orothopedics & Sports Medicine, Inc., decided this week by Ohio's 7th Appellate District, illustrates the pitfalls that await companies that terminate employees in the midst of a workers' comp leave. It also shows that managers and supervisors must be vigilant in what they put in writing.

Marianne Cunningham was an x-ray technician for Steubenville Orthopedics. She injured her back at work and took a six-week leave of absence after filing a workers' comp claim for her injury. After informing Steubenville Orthopedics that she would be able to return to work the following week, she was laid off. Among the evidence that the court relied upon in reversing the trial court's dismissal of the retaliation claim was certain notes kept by her boss, Dr. Amin, in his desk:

• Notes that specifically mentioned a back injury Cunningham had suffered at a prior job.
• Dr. Amin gave excessive absenteeism as the reason for Cunningham's termination. His notes, however, documented that Cunningham was only absent 6 times in the 30 months prior to her injury, while the employee who replace her during her workers' comp leave missed 5 to 10 days of work during a shorter prior of time and was not terminated.

I've often written about the importance of documentation in employment cases. The Cunningham case illustrates that what you don't document is often as important as what you do document. Steubenville Orthopedics's case was sunk because Dr. Amin did not carefully vet his thoughts before committing them to paper. His notes gave the court the evidence it needed to find that a question of fact existed on the issue of Dr. Amin's motivation for the termination. Dr. Amin will now have to come up with some non-retaliatory explanation for his notes that passes the red-face test in front of a jury, an unenviable position.

Update on Ohio Health Families Act

The Columbus Dispatch reports that the Ohio legislature is balking at the Ohio Health Families Act in its current form. The legislature has until May 8 to pass the OHFA. If it does not, Sick Days Ohio, the Union-led coalition of 180 different groups that sponsored the measure, would be entitled to circulate a petition to gather 120,683 signatures to qualify the law for placement on the fall ballot. A recent Columbus Dispatch poll shows that Sick Days Ohio likely would not have much problem obtaining those signatures. According to the poll, 76% of registered Democrats and 45% of registered Republicans favor the OHFA, while only 15% of Democrats and 44% of Republicans oppose it.

This wide bipartisan public support likely means that the OHFA will appear on November's ballot and will probably pass by a comfortable margin. In other words, Ohio's businesses better prepare themselves for the likely prospect of mandatory paid sick leave beginning in 2009.

Rehiring of "boomerang" employees poses unique problems

Raytheon v. Hernandez, decided by the U.S. Supreme Court in 2003, confirmed that an employer may lawfully refuse to rehire a previously terminated employee as long as the refusal is based on a neutral no-rehire policy and not on some protected trait. Today's South Jersey Courier Post talks about the benefits to employers to rehiring former employees who left on good terms, so called "boomerang" employees:

[A]s the marketplace becomes more globally competitive for skilled workers, companies find that it makes perfect sense to rehire former workers.... No longer is it seen as disloyal for an employee to go to another company for career opportunities, and employers are welcoming back former workers with open arms.

In rehiring a former employee, consideration must be paid to whether that specific rehiring decision will make a decision not to rehire another employee appear discriminatory. It may make perfect business sense to rehire one employee and not another, but if the rehired employee is outside a protected class, it may cause the rejection of other former employees to be questioned. If you have a blanket no rehire policy, it is best to either follow it, or be prepared to explain why you chose not to follow it in a specific instance. If you instead choose to rehire ex-employees on a case by case basis, make sure to have a legitimate business reason why one employee's request was granted and not another's.

What else I'm reading this week #22

This week's review starts with a couple of posts that should be of particular interest to Ohio businesses. Kris Dunn, The HR Capitalist, reports that Wal-Mart has overtaken GM as Ohio's largest employer. Meanwhile, The Union-Free Employer details a nasty labor dispute between the Service Employees International Union and the California Nurses Association for the right to organize at Ohio's Mercy Health hospital system.

The big news of the week, though, is hooker-gate in New York. Michael Moore at the Pennsylvania Employment Law Blog draws from Governor Spitzer's crisis some lessons for HR in scandal management .

Philip Gordon, the Workplace Privacy Counsel, has a great post on the problems inherent in dealing with a former employee's damaging web posts about your company.

Sticking with the technology theme, Rush Nigut's Rush on Business gives businesses some lessons in the litigation dangers presented by deleted emails, and Alaska Employment Law talks about the legalities of secret locker room surveillance.

Finally, John Phillips of The Word on Employment Law provides a helpful Q&A on employee handbooks.

Defamation liability in internal investigations?

Jackson v. City of Columbus, decided today by the Ohio Supreme Court, illustrates the importance of being thorough in all internal investigations of employee misconduct, and only disclosing the results of such investigations on a need to know basis.

The Mayor of Columbus asked his Columbus Public Safety Director, Thomas Rice, to conduct an internal investigation of his Police Chief, James Jackson, on allegations of police corruption. In June 1997, Rice presented his report of the investigation to the Mayor and released it to the public. In the report was a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleged that Jackson had impregnated a juvenile prostitute. A polygraph conducted during the interview of Jones concluded that he was deceptive during the interview but that his statements about the underage prostitute were not entirely invalid. Following the public release of the report, Jackson filed a defamation suit against the City. Both the trial court and the court of appeals found in the City's favor, in that the comment about the juvenile prostitute was subject to a public interest privilege. The Ohio Supreme Court accepted the case on the issue of whether one "commits defamation by publishing the defamatory statements of a third party when the publisher has a high degree of awareness of the probable falsity of those statements.”

Defamation occurs when a publication contains a false statement "made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." If a plaintiff makes out a defamation case, a respondent may then invoke a conditional or qualified privilege, which must be supported by "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." A qualified privilege may be defeated only if a plaintiff proves with convincing clarity that a publisher acted with actual malice. "Actual malice" is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." "reckless disregard", in turn, means that a publisher of defamatory statements acts with a "high degree of awareness of their probable falsity," or when the publisher "in fact entertained serious doubts as to the truth of his publication."

The Ohio Supreme Court decided that the City abused its privilege in reporting that Jackson had impregnated a juvenile. First, the City relied solely on the word of a convicted felon with a history of being a liar, and who had a questionable polygraph result. Secondly, and perhaps more importantly, Rice never interviewed Jackson about the allegation. According to Jackson, had he been asked, Rice would have been told that Jackson had a vasectomy and could not have impregnated anyone.

Before you conclude that the Jackson case doesn't apply to your business, consider that it teaches some general lessons on the handling of all internal investigations. Ohio court have held that employers enjoy a qualified privilege to disclose the results of internal investigations. See Lennon v. Cuyahoga Cty. Juvenile Court; Blatnik v. Avery Dennison Corp. When conducting internal investigations into allegations of sexual harassment or other employee misconduct, Jackson highlights a couple of important points.

• Consider your source. Who is providing certain information is as important as the information that is provided. Do not take what a witness says at face value without taking into consideration the witness's credibility. Does the witness have history of truthfulness? Does the witness have something to gain in the outcome, such as a promotion if another employee is terminated? Is the witness biased towards either the victim or accused? These questions are important in determining how much weight to give to a witness's statements, if any at all.
• Only disclose to those who need to know. Confidentiality is key in any internal investigation, even more so if the allegations are as devastating as sex with an underage prostitute. The more widely you disclose the fruits of any investigation, the more you open yourself up to a claim that you have abused the qualified privilege. The best practice is to limit the sphere of knowledge to those who absolutely need to know, and further limit what is told to those who need to know. How much information to disclose and to whom is largely a judgment call, but as a rule of thumb less is better.