In a November announcement, the U.S. Citizenship and Immigration Services announced that the E-Verify system now has the ability to "lock" Social Security numbers that appear to be misused. The agency says it will use a variety of detection systems to identify "patterns of fraudulent SSN use" and then lock that number in the E-Verify system, much like credit card companies lock cards that appear to have been stolen. As a result, employees that use a locked Social Security number will receive a tentative non-confirmation, which they will have to contest with the Social Security Administration.

While this new system will undoubtedly assist in some way in lessening identify fraud, it should be noted that both the imposter and the true owner will have the same Social Security Number, and at least initially the system will lock out both.

The National Labor Relations Board in recent years has embarked upon a program to attack numerous work rules used by employers, on the theory that overbroad rules can "chill" legitimate union activities or other concerted employee activities. A recent example of such an attack is the case in which the NLRB General Counsel attacked an employer's work rule that prohibited employees from recording ". . . conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from the store or facility leadership." The NLRB General Counsel contended that the rule could reasonably be interpreted by employees to prevent them from recording statements or conversations that involve activities permitted by Section 7 of the Act, including alleged unlawful statements made by supervisors.

The NLRB administrative law judge rejected the General Counsel's contentions, noting that the prohibition on recording conversations was stated in a context that clearly stated the rule's lawful purpose, and that the rule addressed legitimate business concerns. Whole Foods Market, Inc., 197 LRRM 1518 (ALJ decision, 10/30/13).

Editor's Note – It has long been assumed that an employer has the right to promulgate a work rule prohibiting the use of recording devices on its property, at least in the absence of special circumstances. For example, it might be risky for an employer to promulgate such a rule in the midst of a union organizational campaign, in which employee organizers are using recording devices for protected activity. Therefore, it is of some concern that the General Counsel attacked the employer rule in the Whole Foods case. While the administrative law judge ruled in favor of the employer, the ruling was based at least in part on the stated lawful purposes of the rule in the particular case, and it would have been better had the rationale for the decision been broader.

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While the Americans with Disabilities Act Amendments of 2008 (ADAA) greatly expands the definition of those considered disabled, and thus the requirement to provide reasonable accommodations, even the ADAA gives employers broad rights in rehabilitating alcohol and drug-dependent employees. A recent example of this occurred in a case in which an alcoholic driver was required to remain drug and alcohol free as a condition of returning to work. Ostrowski v. Con-Way Freight, Inc., 28 AD Cases 1197 (C.A. 3, 2013).

In this case, the plaintiff requested a leave of absence pursuant to the Family and Medical Leave Act (FMLA) to enter a rehabilitation program for the treatment of alcoholism. The employer granted the request and did not impose any discipline in connection with the leave. When the plaintiff returned to work, the employer required him to sign a "Return-to-Work Agreement" in which he agreed to remain "free of drugs and alcohol (on company time as well as off company time) for the duration of his employment." Within a month of signing this agreement, however, the plaintiff again admitted himself into a center for the treatment of alcohol abuse after he suffered a relapse and resumed consuming alcohol. The employer terminated the plaintiff's employment, with the sole reason being that he had consumed alcohol in violation of the Return-to-Work Agreement. The plaintiff then sued the employer under both the ADAA and the FMLA.

The circuit court confirmed the district court's summary judgment granted to the employer, dismissing all claims. The court stated that employers do not violate the ADAA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Such agreements that bar an employee from consuming alcohol – whether at the workplace or otherwise – have been recognized and upheld in many circumstances. Although the plaintiff was subject to different standards than other employees who did not sign a return-to-work agreement, the difference results from the terms of the agreement rather than disability discrimination. The appeals court finds that such agreements do not discriminate because of an alleged disability (alcoholism) or restrict the ability of individuals who suffer from alcoholism to work. Rather, such agreements merely regulate the conduct (drinking alcohol),  prohibiting employees subject to its terms from doing so. Thus, such agreements are not invalid under the ADAA.

Suppose a commercial truck driver telephones his supervisor informing him that he had too much alcohol over the weekend, that he thought he was an alcoholic, and that he was going to attend an Alcoholics Anonymous (AA) meeting. Suppose further this trucking employer has an unwritten policy that any driver who self discloses that he has had a substance abuse problem may not return to work until he has been evaluated by, and completed treatment with, a substance abuse professional qualified by the Department of Transportation (DOT), and that such driver can never be permitted to return to a commercial driving position. In a recent case brought by the EEOC, this fact pattern occurred. EEOC v. Old Dominion Freight Line, Inc., 28 A.D. Cases 161 (W.D. Ark. June 26, 2013).

In Old Dominion, the company argued that it was not required to return Mr. Grams to a driving position because his failure to complete the treatment program recommended by the substance abuse counselor, as provided for by Federal Motor Carrier and Safety Regulations (FMCSR), 49 C.F.R. 40.305(b), rendered him unqualified for the job. Additionally, the company argued its ban on allowing a driver with a history of dependency to ever drive was justified by business necessity and the safety sensitive nature of the job, particularly because of the possibility of relapse and the difficulty of supervising truck drivers. The EEOC contended that the policy violated the ADAA, because it did not grant drivers a reasonable accommodation and that the DOT regulation was not applicable.

The court discussed whether the driver was qualified for the driving job, which the employer admitted he had successfully performed for several years. The court held that Old Dominion did not violate the ADAA when it suspended Mr. Grams and required him to go for referral, evaluation and treatment for alcohol abuse after he identified himself as having an alcohol abuse problem.

Turning its attention to the carrier's policy prohibiting drivers with alcohol abuse problems from ever returning to a driving position, the court first noted that the ADAA prohibits employers from using qualification standards that screen out an individual with a disability, unless the standard is job-related and consistent with business necessity. The court found that not having an alcoholic driving a commercial vehicle is a business necessity and that this necessity is served by the referral/evaluation/treatment process. The court further stated, however, that the business necessity would not be served by requiring a driver to go through this process if there were no possibility that the employee would ever receive an accommodation for his disability that allowed him to return to driving.

The court then analyzed Old Dominion's safety concerns under the “direct threat” provision of the ADAA, which allows an employer to exclude an employee from a job if there is no reasonable accommodation available that will allow the employee to perform the job in question without posing “a significant risk of substantial harm to the health or safety of the individual or others…” 29 C.F.R. § 1630.2(r). Application of the direct threat provision of the ADAA requires the employer to conduct an individualized assessment to determine whether the particular employee can safely perform the essential functions of the job in question without posing such a risk. By failing to perform such an individualized assessment of Mr. Grams, and by absolutely prohibiting individuals who have suffered from alcoholism from ever driving, Old Dominion violated the ADAA. The court further noted, by way of example, that the company might be able to eliminate the risk an individual might pose by, as the EEOC suggested, installing a breathalyzer in a driver’s truck to prevent the truck from operating if the driver was impaired.

The EEOC also asserted that the company violated the ADAA by requiring Grams to complete the referral/evaluation/treatment process in order to work as a dock hand, and by terminating his employment because he told the company that he was not going to complete the recommended treatment process, but that instead he would participate in Alcoholics Anonymous. The court first noted that there did not appear to be any law, rule or regulation classifying dock work as a safety-sensitive position, or otherwise indicating that alcoholism is a disqualification for dock work. As a result, the court concluded that a reasonable jury could find that requiring an alcoholic employee to go through the referral/evaluation/treatment process, as opposed to AA or some other type treatment, in order to work as a dock work, was not job related and that the company’s explanation for its actions were a pretext for discrimination, all in violation of the ADAA.

Although the court stated it believed it had reached the correct decision, it also stated that the issue of whether an employer can follow a policy absolutely prohibiting any person who has suffered from an alcohol abuse problem from forever driving a commercial vehicle is a controlling question of law about which there is substantial grounds for difference of opinion. The court also believed that the issue could affect every other matter at issue in the case and that it was therefore appropriate to certify the question for immediate appeal to the Circuit Court of Appeals for the Eighth Circuit. The Eighth Circuit, however, refused to hear the appeal at this time, allowing the district court’s opinion to take effect and the remaining issues in the case to proceed.  The employer may still be able to appeal the issue after all other matters are decided in the district court.

Editor's Note - The holding in Old Dominion is controversial, to say the least. Before getting to any comments on the appropriateness of the ruling, it is helpful to note that the ADAA permits an employer to “…hold an employee who . . . is an alcoholic to the same qualifications standards for employment or job performance and behavior that such [employer] holds other employees, even if unsatisfactory performance or behavior is related to . . . the alcoholism of such employee." Section 12114(c)(4). An employee who violates the employer’s rules, as opposed to an employee who comes forward and says that he or she needs help, can be treated just like any other employee, even if the conduct or performance problem is related to alcoholism. The only question is whether and when can an employee with a substance abuse problem be treated differently.

First, case law strongly suggests that if an employee engages in conduct or has performance issues that would justify termination, the employer can instead suspend the employee and require successful rehabilitation and evaluation, prior to allowing the employee to return to work, and that the employer can condition an employee’s return to work upon their compliance with special conditions not generally imposed on other employees, such as periodic alcohol and/or drug testing. For example, in Clifford v. County of Rockland, 28 A.D. Cases 129 (C.A. 2, 2013), the court said that, under the circumstances faced by the employer, it acted lawfully when, as a condition of continued employment, it prohibited the employee from having any alcohol in his blood stream, and required that he submit to periodic testing to assure he did not, effectively prohibiting the employee from drinking on or off the job. The court also said the employer could insist the employee be evaluated to determine the likelihood of an imminent relapse.

Employers also run into questions of whether they must rehire an employee who had a substance abuse problem when previously employed. The U.S. Supreme Court expressly upheld an employer’s right, consistent with the ADAA, to apply a neutral no-rehire policy for all employees that have been discharged for violating company rules in Raytheon Co. v. Hernandez, 537 U.S. 1187 (2003). In that case, the Court rejected the employee’s argument that the employer’s policy prohibiting the rehire of any employee who resigned in lieu of being discharged for violating company work rules was discriminatory because it had a discriminatory impact on those with disabilities. Rather, the Court held that as long as the policy underlying the employer’s action was consistently applied and as long as there was no evidence the policy was being used as a pretext for discriminating against the plaintiff himself, application of the generally applicable policy to people with a disability is lawful. It is important to note that Raytheon involved a policy prohibiting rehire of employees who had violated company rules and not, as did Old Dominion, a situation in which an employee was punished because of his status as an alcoholic.

Now back to some comments on the district court's rulings in Old Dominion. The first part of the court's ruling, pertaining to a permanent no-rehire ban only for alcohol-related offenses only, is an open question under the ADAA. Until such time as it is definitively determined that a no rehire policy applicable only to those with substance abuse problems is lawful, the safest course of action is to conduct an individualized inquiry into the individual’s work history and other relevant circumstances. If after doing so, it is determined that because of the individual’s past history and/or other factors particular to him, he cannot perform the essential functions of the job without posing a direct threat to the health or safety of himself or another person, the employer would be justified in refusing to rehire him. For example, where the medical director of a hospital, who was responsible for supervising the hospital’s medical staff and for administrative functions critical to the hospital had a history of substance abuse and had recently been found treating a patient while under the influence, the court held that the hospital was justified in refusing to return the doctor to his previous position, even after he received treatment. Altman v. NYC Health & Hospitals Corp., 903 F. Supp. 503 (S.D.N.Y. 1995). Although it would likely not be necessary to do so in all situations, the hospital did allow the doctor to return as a staff physician – in other words it provided him a position where he could be adequately monitored and thus perform the job safely without posing a direct threat to himself or others.

It is also important to remember that Old Dominion did not concern an employee who had violated a company rule or policy, or application of a neutral company rule or policy that applied to all employees; rather, it addressed the lawfulness of a policy prohibiting the rehire of an employee because of his self-reported status as an alcoholic. The writer believes this is a very important distinction and that the holding in Old Dominion does not affect an employer’s right to enforce a performance or conduct policy that applies

to all employees, rather than one that is specifically directed only at individuals who have or have had an alcohol or substance abuse problem.

It should also be noted that although carriers have a legitimate business concern with allowing recovering substance abusers to work as drivers because of potential financial liability to third parties, in the past these financial concerns have not been considered to be a “business necessity” that will justify a policy prohibiting such persons from working as drivers. That said, the risk of physical harm to third parties was accepted as a business necessity in Old Dominion. In other words, how the issue is framed can matter. Where the court in Old Dominion differed from what many readers may think, is that the court refused to accept the argument that once a risk always a risk and appeared to believe that even assuming recovering alcoholics continued to pose a high risk because of the chance of relapse, there may have been accommodations that could have been made to reduce or eliminate the risk – for example, the installation of breathalyzers in trucks.

The second part of the court's ruling providing that an employer cannot require an alcoholic driver to go through a specific referral/evaluation/treatment process before returning to work in a non-driving position, is probably unsound as a matter of law except to the extent that a factual pattern emerges suggesting the requirement is a "pretext" to exclude a recovered alcoholic. That is, an employer should be able to in good faith set forth what it considers to be an appropriate rehabilitation program prior to returning an employee to work, unless the factual pattern makes the requirement look like a "made-up excuse" or other maneuver to get rid of such persons.

*Article republished here with permission by the Safety Management and Supply Chain Security Councils of the American Trucking Associations, Arlington, VA. Portions of this article were first printed in the Informer, a quarterly magazine of the ATA Councils.

Correction: In the December 2013 Employment Law Bulletin, the second paragraph in the article "Employer Plans Developing for Future of Healthcare," the correct language should be as follows:

"For 2014, ObamaCare requires large employers to cover workers, but not dependent children. For 2015, the requirement to cover dependent children applies, but the dependent children coverage does not have to be affordable."

Wimberly & Lawson, P.C. © 2014. This publication is intended for general information purposes only and does not constitute legal advice. Readers may consult with any of the attorneys at Wimberly & Lawson to determine how laws, suggestions and illustrations apply to specific situations.

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