Refusal to take drug test bar workers’ comp retaliation claim

Many companies require employees to submit to drug tests after suffering a workplace injury. The rationale is simple – intoxication is one of the few complete defenses an employer has to a workers’ comp claim for a workplace injury.

What happens, though, if the injured employee refuses to take the drug test? That scenario presented itself to SanMar Corporation in late-2006. Thomas Ferguson left work complaining of a non-work-related backache. He told the ER nurse, however, that his pain was caused by an aerial harness he had to wear at work. Upon hearing the injury was work-related, the nurse asked Ferguson to submit to a drug test, which he did.

Ferguson returned to work the following week with light duty restrictions. SanMar’s HR department that he needed to submit for drug testing. Ferguson complained that he had already taken a test the prior week. SanMar, however, required a re-test because the earlier test did not comply with its policy for the employee to be transported to the testing facility. Ferguson went on his own, without SanMar even knowing he had suffered a workplace injury.

Because of Ferguson’s protests about the re-test, and his “nervous and fidgety” reaction, SanMar’s Assistant Manager required that the re-test be monitored. Upon learning that the drug test would be observed, Ferguson refused to be tested. SanMar subsequently terminated him for refusing to submit to a drug test in contravention of company policy.

Ferguson sued, claiming that SanMar terminated him in retaliation for his workers’ comp claim. In Ferguson v. SanMar (8/17/09), the Butler County (Ohio) Court of Appeals affirmed the trial court’s dismissal of Ferguson’s claim:

Kirk, as assistant facility manager, made that determination after noticing Ferguson’s “nervous and fidgety” reaction to being asked to resubmit to a drug test. Kirk’s decision was not punitive action against Ferguson because Ferguson filed a workers’ compensation claim. Instead, it was a management decision predicated on a suspicion that Ferguson was using drugs or alcohol in the workplace.

For Ferguson’s argument to succeed, the evidence would have to show that SanMar knew that requiring him to be transported to the hospital and observed while he submitted to the test would induce Ferguson’s refusal to be tested. There is no way that SanMar, or anyone for that matter, could have known that Ferguson would refuse to be tested…. It was Ferguson’s own refusal to submit to the test that motivated his discharge. That refusal, under the written policy, was likewise sufficient to result in Ferguson’s discharge.

Drug testing policies are complicated and very easy to get wrong. Indeed, while Ohio does not have a specific statute that governs such policies, other states do (Oklahoma comes to mind). If you are considering implementing a drug testing program for your workforce, experienced counsel should vet it before you put it into circulation. If you already have a policy in place, it should be reviewed periodically for compliance.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Harassment by a non-employee

Last week, an Orlando, Florida, jury convicted a Pennsylvania tourist of groping Minnie Mouse. Apparently, the man thought it was okay to grab Minnie’s breasts and bottom through her costume while visiting the character at the Magic Kingdom.

Do you know what an employer’s obligations are when an employee complains of harassment by a non-employee such as customer, vendor, or contractor? The obligations are exactly the same as if the alleged perpetrator was an employee. In fact, Ohio has a specific regulation that addresses this exact scenario: Admin. Code 4112-5-05(J)(5):

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

At the end of the day, a harassment complaint by an employee against a non-employee should not be treated any differently than an intra-employee complaint:

1. Separate the complaining employee from the alleged harasser.

2. Promptly and fully investigate the allegations.

3. Evaluate the evidence and make a reasoned conclusion as to what happened.

4. Take prompt and effective remedial steps, if necessary.

5. Use the complaint as an opportunity to retrain employees about your sexual harassment policy.

[Hat tip: Employeescreen IQ Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Papering a personnel file as evidence of retaliation?

When Carolyn Upshaw started filing EEOC charges against her employer, Ford Motor Company, it began to document her on-going performance problems. After she filed her 3rd charge and a lawsuit in a 15-month period, Ford terminated her employment. The termination occurred nine months after the last EEOC charge and four months after the lawsuit was filed. In Upshaw v. Ford Motor Co. (8/14/09) [PDF], the 6th Circuit concluded that her underlying discrimination lawsuit was baseless, but that her retaliation lawsuit, premised on the timing of Ford’s documentation of her performance problems, warranted a jury trial:

We have held that the combination of close temporal proximity between an employer’s heightened scrutiny and that plaintiff’s filing of an EEOC charge is sufficient “to establish the causal nexus needed to establish a prima facie case” of retaliation…. Here, Upshaw has proffered evidence that Ford subjected her to heightened scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that Hughes-Sharp and Brooks began developing a timeline of Upshaw’s employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw’s complaints to Human Resources…. Given the close temporal proximity between Upshaw’s August 2003 EEOC charge and Ford’s request for information from other employees documenting Upshaw’s complaint activity, and Brooks’s request for discipline, a reasonable juror could find that Upshaw has established a prima facie case of retaliation.

I’ve written in the past about the importance of timely and accurate documentation of performance problems. The Upshaw case underscores this point. It is not enough to document performance problems. The documentation must be consistent. A lot of employers think nothing of papering a personnel file after an employee becomes a pain in their side. Under Upshaw, such papering, that only begin once an employee files a discrimination charge or engages in other protected activity, could be used as prima facie evidence of retaliation. In other words, document early and document often, and don’t document selectively.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #91

This week’s tip-of-the-week is courtesy of Rush Nigut’s Rush on Business – get it in writing. A handshake or an oral promise is only as good as the relationship that supports it. The problem, however, is that by the time that handshake ends up in court, the relationship that underlies is has deteriorated to the point that, well, you’ve ended up in court. And it’s amazing how bad memories become once a relationship has deteriorated into litigation.

Mark Toth’s Manpower Employment Blawg draws some lessons on how not end up in court based on some recently reported EEOC settlements and verdicts.

Anthony Zaller at the California Employment Law Report offers the top 10 mistakes in drafting job descriptions. I’ll add number 11 (which should really be number 1) – not having written job descriptions at all.

Dennis Westlind at World of Work shares his opinion on Title VII and body piercings.

Jeffrey Hirsch at the Workplace Prof Blog discusses yet another employee fired for something posted on her Facebook page – in this case, expletive complaints about her boss.

Staying on the topic of social networking, Patrick Smith’s Iowa Employment Law Blog thinks that employers should act cautiously when performing internet searches on job applicants.

William Bowser at the Delaware Employment Law Blog tells when an employer should consider offering severance.

Dan Schwartz at the Connecticut Employment Law Blog helps employers brace for this fall’s return of the swine flu.

Finally, I end this week’s review with some wage and hour topics.

Jennifer Hays at the Warren & Hays Blog has an important bit of information for officers and managers – they can be held independently liable for unpaid wages under the FLSA.

Wage & Hour Counsel talks about when employers are and are not liable for employees’ time spent changing into and out of company-issued gear.

Fair Labor Standards Act Law discusses retaliation under the wage and hour laws.

Finally, Jay Shepherd’s Gruntled Employees reports on a ruling by a Massachusetts court that a strip club had misclassified its dancers as independent contractors. Jay’s advice if you mess up an employee’s pay:

There’s no defense if you got it wrong. Our advice to employers: make sure you get the pay right. Or be prepared to settle if you don’t.

And bring plenty of singles.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Can you still be funny at work in a politically correct work?

Today’s HR Daily Advisor, published by BLR, asks the following question: Can You Still Tell a Joke in the Office? Instead of answering that question, I turn today’s post over to David Brent:

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Lawsuits over off-the-clock smart phone use ask, “What is work?”

More than two years ago I cautioned that employers who require non-exempt employees to carry Blackberries or other devices that receive work-related emails could be liable for the time those employees spend reading and responding to those emails outside of work. (Can't get away from the office).

It appears that the plaintiffs’ bar has caught with this potential theory of liability. Michael Sanserino, in Monday’s Wall Street Journal, reports that two different lawsuits have been filed claiming that hourly employees should be compensated for time spent responding to emails while off the clock.

Even if reading and responding to work related email is work-related (and it likely is), I’m not convinced that employers should have to pay for any time spent performing these tasks. Most messages can be read in a matter of seconds or, at most, a few short minutes. The Fair Labor Standards Act calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. Think of the administrative nightmare of an HR or payroll department having to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

If a business wants to err on the side of caution, it could always draft a policy requiring employees to turn off their smart phones when they leave work for the day, or simply leave them at the office. With that policy, though, why issue the devices in the first place?

For more thoughts on this topic, I recommend the thoughts of my fellow bloggers:

• Ashby Jones at the Wall Street Journal Law Blog.
• Devora Lindeman at the Overtime Advisor.
• Patrick Smith at the Iowa Employment Law Blog.
• Jeffrey Hirsch at the Workplace Prof Blog.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? FMLA fitness-for-duty certifications

In a previous post, I detailed the new FMLA regulation’s eligibility notice and designation notice requirements. The FMLA also has specific requirements for how an employer must go about obtaining a fitness-for-duty certification from an employee on an FMLA leave for his or her own serious health condition.

1. Mandatory written notice. Before an employer can require an employee to provide a fitness-for-duty certification, it must expressly be provided for in a written FMLA policy or in the designation statement given to the employee at the outset of the leave. Additionally, if the employer wants the certification to address the essential functions of the employee’s job, a list of such functions must be provided to the employee with the designation notice.

2. Uniformity. The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, job function, or serious health condition) who take leave for such conditions to obtain and present the certification.

3. Limited to the specific health condition. An employer may only seek a fitness-for-duty certification with regard to the particular health condition that caused the employee’s need for FMLA leave.

4. Cost. The employee must pay for the cost of the certification, and the employee is not entitled to be paid for the time or travel costs spent acquiring the certification.

5. Clarification. While an employer can seek clarification of a fitness-for-duty certification with an employee’s health care provider under the same rules applicable to other communications with an employee’s health care provider, the employer cannot delay the employee’s return to work pending the clarification. Unlike the initial leave certification, an employer cannot seek a second or third opinion of a fitness-for-duty.

6. Denial of job restoration. An employer can deny restoration, however, if a properly requested fitness-for-duty certification is not returned by the employee.

7. Intermittent or reduced work schedule leave. An employer is not entitled to a certification for each absence taken on an intermittent or reduced leave schedule. An employer is entitled, though, to a certification for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave. An employer may not terminate the employment of an employee while awaiting such a certification for an intermittent or reduced schedule leave absence.

8. Interplay with the ADA. After an employee returns from FMLA leave, the ADA requires any medical examination at an employer’s expense by the employer’s health care provider be job-related and consistent with business necessity. If an employee’s serious health condition may also qualify as a disability under the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.