major life activities

Medical Marijuana and the ADA: Interactive Process is Everything

July 23, 2017 by William Goren 3 Comments

Last week the legal blog world lit up with the case of Barbuto v. Advantage Sales and Marketing, LLC, a decision of the Massachusetts Supreme Court on July 17, 2017. Both of my fellow panelists, Robin Shea and Jonathan Hyman, on our ADA and employment issues panel at the Federal Bar Association convention in September here in Atlanta have talked about this issue previously. Jon has a blog entry on this case, which can be found here. I thought I would add my own thoughts. As is usual, the blog entry is divided into categories and they are: facts; Massachusetts specific things and federal law; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Plaintiff has Crohn’s disease and has a prescription for the medical use of marijuana she uses usually in the evening two or three times per week. The use of the drug allows her to maintain a healthy body weight. Plaintiff was offered an entry-level position with Advantage Sales and Marketing and accepted the offer. A representative of the defendant later left a message for the plaintiff saying she had to take a mandatory drug test. Plaintiff immediately told the employee who would be her supervisor she would test positive for marijuana explaining that she suffered from Crohn’s disease and had a written certification from her physician allowing the medical use of marijuana. She also mentioned that she was a qualifying medical marijuana patient under Massachusetts law and that she did not use it daily nor would she consume it before work or at work. The supervisor told the plaintiff that the medicinal use of marijuana should not be a problem but he would confirm this with others at Advantage Sales and Marketing. He later telephoned her and confirmed that her lawful medical use of marijuana would not be an issue with the company. However, once the human resources department received her urine test, they immediately terminated her for testing positive for marijuana saying that they did not care if she used marijuana to treat a medical condition because the company follows federal law and not state law. Plaintiff then filed a complaint in state court alleging handicap discrimination under Massachusetts law as well as alleging violations of other laws (we will just focus on the handicap discrimination piece). At the trial court level, the judge granted the defendant’s motion to dismiss and plaintiff appealed.

Massachusetts Specific Things and Federal Law

Under the Massachusetts medical marijuana act a qualifying patient is a person who has been diagnosed by a licensed physician as having a debilitating medical condition, and Crohn’s disease is expressly included within the definition of a debilitating medical condition.
The Massachusetts medical marijuana act also provides that any person meeting the requirements under this law cannot be penalized under Massachusetts law in any manner or denied any right or privilege for such actions.
While Massachusetts uses the term handicapped instead of disability with respect to its anti-disability discrimination laws, the definition of handicapped under Massachusetts law matches up with the definition of disability under the ADA.
Massachusetts law also matches up with the ADA with respect to what constitutes an unlawful practice. That is, the focus is on whether the handicapped person can perform the essential functions of the job with reasonable accommodations. If so, then in Massachusetts, the plaintiff wins unless the employer can demonstrate an undue hardship to the employer’s business.
Similarly, the Massachusetts Commission against Discrimination has issued guidelines on what is a reasonable accommodation. Those guidelines state that a reasonable accommodation is any adjustment or modification to a job (or the way the job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position and to enjoy equal terms, conditions and benefits of employment. This phrasing is, very similar, if not identical, to the ADA.
Under federal law, marijuana is a scheduled I controlled substance under the controlled substances act. Possession of such a substance is a crime, regardless of whether it is prescribed by a physician for medical use. Therefore, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to federal criminal prosecution for possessing the prescribed marijuana.

III

Court’s Reasoning

Plaintiff is a handicapped person under Massachusetts law because as a result of Crohn’s disease combined with irritable bowel syndrome, the plaintiff had little or no appetite and had difficulty maintaining a healthy weight in the absence of the use of medical marijuana.
While the plaintiff did not specify the major life activities that were substantially limited, working would be one based upon the allegations in the complaint. Another, would be eating.
Where an employee is handicapped because she suffers from a medical condition that can be alleviated or managed with medication, one generally expects an employer not to interfere with the employee taking such medication nor to terminate the employee because she took the medication.
Where the employer has a drug policy prohibiting the use of such medication even if it is lawfully prescribed by a physician, the employer has a duty to engage in the interactive process with the employee to determine whether there are equally effective medical alternatives to the prescribed medication whose use are not in violation of this policy.
If no equally effective alternative exists, then under Massachusetts law, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to its business.
Since the burden of proving undue hardship is on the employer, where the employee brings a handicap discrimination claim following her dismissal for the use of her prescribed medication, that complaint survives a motion to dismiss where it adequately alleges that the plaintiff is a qualified handicapped person because she could have competently performed her job with the medication.
Under Massachusetts law, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.
It is a facially reasonable accommodation to make an exception to an employer’s drug policy where in the opinion of the employee’s physician, medical marijuana is the most effective medication for that medical condition and where any alternative medication permitted by the employer’s drug policy would be less effective.
A qualified handicapped employee has a right under Massachusetts law not to be fired because of that handicap. That right includes the right to require an employer to make a reasonable accommodation for a handicap to enable her to perform the essential functions of her job.
The medical marijuana act itself declares that a person cannot be denied any right or privilege on the basis of their medical marijuana use, and a handicapped employee has a statutory right or privilege to reasonable accommodation under Massachusetts law. To hold otherwise, would allow an employer to deny such a right or privilege solely because of the patient’s use of medical marijuana.
The medical marijuana act implicitly recognizes that off-site medical use of marijuana as a permissible reasonable accommodation.
It doesn’t matter that possession of marijuana is a violation of federal law because the only person at risk of federal criminal prosecution is the employee and not the employer. That is, an employer would not be the one in possession of medical marijuana nor the one aiding and abetting its possession simply by permitting an employee to continue his or her off-site use.
Nearly 90% of States have enacted laws regarding medical marijuana. Such laws reflect the determination by the States that marijuana when lawfully prescribed by a physician has a currently accepted medical use in treatment.
Declaring medical marijuana to be a per se unreasonable accommodation due to federal law would be disrespectful of Massachusetts voters (such sentiments regarding medical marijuana being shared by legislatures and the vast majority of States), who stated that marijuana has accepted medical use for some patients suffering from debilitating medical conditions.
Even if you assume that medical marijuana is a facially unreasonable accommodation, which according to the Massachusetts Supreme Court it is not, the employer loses because it did not engage in the interactive process prior to terminating the employee.
It is certainly possible that the defendant may yet prevail on summary judgment by showing that making an exception to the policy constitutes an undue hardship on their business. For example, perhaps the employer could show that the plaintiff’s performance of her work poses an unacceptably significant safety risk to the public, to the employee or to fellow employees. Or, perhaps the employer can show that the use of marijuana by an employee violates an employer’s contractual or statutory obligation thereby jeopardizing its ability to perform its business. For example, transportation employees are subject to regulations of the United States Department of Transportation prohibiting any safety sensitive employees subject to drug testing under their regulation from using marijuana.
Whether an undue hardship exists, is much better resolved at the summary judgment or trial stage rather than through a motion to dismiss.

Takeaways:

When dealing with the ADA, you can’t forget about state law. In this situation, the ADA and Massachusetts law matchup with respect to the phrasing of their disability discrimination laws. It is an important point because on the employment side, the ADA only applies to employers with 15 or more employees. State laws may have a lower number.
Massachusetts is using the term “handicap,” but the meaning is the same as disability under the ADA. I will add that “handicap,” is a term that is offensive to people in the disability community. Perhaps, a legislator in Massachusetts will come up with a bill replacing “handicap,” with, “disability.”
While the court makes a mention that Massachusetts law prohibits penalizing a person qualifying on the medical marijuana act in terms of denying that person any right or privilege, for purposes of ADA discrimination matters, I am not sure that such a provision is dispositive. That is, it isn’t clear to my mind whether you would still get to the same place in any event.
Very interesting that the plaintiff did not allege a major life activity that was substantially limited, but the court went ahead and made a logical guess as to what major life activity was substantially limited. If this were filed in a federal court, I would expect the defendant to file a motion to dismiss saying that under Iqbal and Twombly, the complaint fails because a substantial limitation on a major life activity was not alleged. So, if on the plaintiff’s side, be sure to specifically mention in a major life activity that is substantially limited because particularly at the federal level, you just can’t expect a court to come up with a major life activity on its own and do the plaintiff a solid so to speak as the Massachusetts Supreme Court did here.
If your state has a medical marijuana statute, don’t go firing that person as a result of a marijuana positive drug test without first undertaking an interactive process to figure out what the alternatives might be.
If your State has a medical marijuana statute, it may be a per se reasonable accommodation to make an exception to the drug use policy for a person using medical marijuana. Again, the key is the interactive process.
It makes sense to me that any medical marijuana act implicitly recognizes off-site medical use of marijuana and therefore, such use is a reasonable accommodation.
Very interesting about the federal law analysis. That is, since the employee bears the risk of prosecution, the employer cannot claim federal law prevents making an exception to his drug use policy for a person using medical marijuana. It will be very interesting to see if this analysis ultimately prevails.
Very interesting to me how the people that the plaintiff was going to work for at Advantage Sales and Marketing greenlighted her going forward with her application and even confirmed as much, but then human resources decided otherwise. One wonders who the supervisor talked to before he gave the green light. Also, one wonders whether knowledgeable legal counsel was involved prior to the termination. True, marijuana can be a complicated issue (a lawyer might go either way), but that is less true with respect to failure to engage in the interactive process.
This case also stands for the proposition that defending on undue hardship grounds, of which there can be many different things that might constitute such an undue hardship, may work for summary judgment or trial, but is not likely to prevail on a motion to dismiss.

Finally, voting for the ABA 100 is still ongoing until the end of the month. So, if you have not already and enjoy this blog, please fill out the form and vote here.

Happy 27th Anniversary to the ADA!

DOJ Final Rules Implementing Title II and Title III of the ADA

August 16, 2016 by William Goren 2 Comments

Last week, the Department of Justice came down with their final regulations implementing the amendments to the ADA with respect to title II and title III of the Americans with Disabilities Act. I had previously written on these proposed regulations back in February 2014, and so I thought it would be a good idea to update that entry. The blog entry is divided into the categories of DOJ final rule and takeaways. As such, it doesn’t make a lot of sense to read just one of the categories, but I suppose that it is possible.

DOJ Final Rule

The DOJ did add the major life activities of reaching, sitting, and interacting with others. It also added writing to its non-exhaustive list of major life activities. It also, to match the title I implementing regulations of the EEOC, added the following examples of major bodily functions: special sense organs and skin; genitourinary; cardiovascular; hemic; lymphatic; and musculoskeletal systems. The DOJ makes it quite clear that the list of major life activities is illustrative and that it is neither necessary nor possible to list every major life activity.
The DOJ also added the immune system and circulatory system to those that may be affected by physical impairment.
The DOJ did add a reference to dyslexia as an example of learning disabilities. The phrase used in the final rule is, “dyslexia and other specific learning disabilities.”
The DOJ did add ADHD as an example of a physical or mental impairment.
The DOJ did stick with the nine proposed rules of construction, which we discussed in the above-mentioned blog entry.
With respect to the regarded as prong, DOJ and its regulations make clear that the burden is on the covered entity to establish that objectively an impairment is both transitory and minor before that exception applies. That is, it doesn’t matter whether the employer believes that the impairment is transitory and minor, rather it is an objective standard. Further, the transitory and minor exception is a defense to a claim of discrimination and not part of a plaintiff’s prima facie case, a position which aligns with the EEOC.
It added a phrase in the final rule noting that not all diagnosed impairments automatically trigger coverage under the ADA since you still have to show a substantial limitation, which may be true, but it isn’t going to happen very often.
As it said it would do in the proposed rule, whether an activity is a major life activity is not to be determined by reference to whether it is of central importance to daily life (the Toyota Motor standard). Instead, the standard to use is whether the impairment substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population with respect to its condition, manner, or duration.
Clarified that the Department of Justice does not endorse reliance on similarly situated individuals to demonstrate substantial limitations. It gives a couple of examples: whether an elderly person is substantially limited in a major life activity should be compared to the general population and not to similarly situated elderly individuals; someone with ADHD should be compared to most people in the general population.
With respect to testing entities, in the final rule, DOJ clarifies that private entities offering covered examinations need to make sure any request for required documentation is reasonable and limited to the need for the requested modification, accommodation, or auxiliary aid or service. Further, when considering requests for modification, accommodation, or auxiliary aids or services, the entity should give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations or provided in response to an IEP or a 504 plan.
The ADA’s prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of disability AND NOT to the requirement to provide reasonable modifications or testing accommodations.
The availability of mitigating measures has no bearing on whether the impairment substantially limits a major life activity.
The origin of the impairment, whether it’s effect can be mitigated, and any ameliorative effects of mitigating measures that are employed may not be considered in determining if the impairment is substantially limiting.
Whether an impairment is both transitory and minor is a question of fact that is dependent upon individual circumstances.
With respect to predictable assessments, impairments not requiring extensive analysis, DOJ added traumatic brain injury, to the list put forth in the proposed rule.
Makes clear that epilepsy, muscular dystrophy, and multiple sclerosis each affect neurological/brain function.
Facts gathered to establish a diagnosis of an impairment may simultaneously satisfy the requirement for demonstrating limitations on condition, manner, or duration sufficient to show that the impairment is a disability.
The ultimate outcome of an individual’s efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar results as someone without the impairment.
DOJ states it believes Congress made its intention clear that the ADA’s protections are such that the focus should be on how persons with disabilities engage in major life activities rather than the ultimate outcome of those activities. So, for example, the capacity to quantify testing grades does not make them inherently more valuable with respect to proving or disproving disability.
With respect to the rules of construction, ameliorative effects of mitigating measures are not to be considered when determining whether an impairment substantially limits a major life activity. There is a non-exhaustive list of mitigating measures and those mitigating measures also include “learned behavioral or adaptive neurological modifications (includes strategy developed by an individual to lessen the impact of an impairment),” as well as psychotherapy, behavioral therapy, physical therapy, and reasonable modifications (includes both informal or undocumented accommodations and modifications as well as those provided through a formal process), or auxiliary aids and services.
With respect to mitigating measures, if a person is utilizing a mitigating measure not on the list, that does not mean that the mitigating measure should be factored in. That is, you would still have to assess the situation without that mitigating measure, unless it is eyeglasses.
With respect to the record of disability prong, any evidence that an individual has a past history of an impairment substantially limiting a major life activity is all that is necessary to establish coverage under that prong.

Takeaways:

What the Department of Justice has done by these regulations is matchup by and large with the EEOC regulations implementing title I of the ADA. That certainly helps for consistency.
School systems when it comes to dyslexia are now going to have a much more difficult time of insisting that dyslexia is not a disability covered by the ADA and 504.
The transitory and minor exception means transitory AND minor, and it is an objective standard. It is also an affirmative defense. Finally, it is the Department of Justice’s view that whether an impairment is transitory and minor is a question of fact. As such, it may now be easier for plaintiff’s to survive summary judgment if the transitory and minor exception is involved.
Toyota Motor’s definition of a major life activity no longer applies.
Whether a person has a disability has nothing to do with similarly situated individuals.
DOJ has put the brakes on excessive documentation request by testing entities and made establishing a disability for accommodations by testing entities much easier. On the other hand, while mitigating measures are out with respect to whether a disability exists, they are not out with respect to figuring out what modifications work; a very important distinction for both testing entities and places of education.
The origin of the impairment has nothing to do with whether a person has a disability or not. While this final rule does not cover employment situations since that is the province of the EEOC and their implementing regulations, this is a big deal because I have seen light-duty policies vary in terms of their benefits depending upon how the disability originated. So, there may be a carryover here to the employment arena.
The lists of major life activities and mitigating measures are not exhaustive.
A person’s success through mitigating measures, whether they be through equipment or strategies the individual has developed, does not undermine a claim of disability. So, one wonders how this case would have turned out if this final rule was in place at the time of the decision, particularly in light of DOJ’s view that mitigating measures cannot be factored into whether the person has a disability but can be factored into the accommodation ultimately reached.
The DOJ believes that it should be fairly easy to establish a record of a disability should there be such a record.
Whether a substantial limitation on a major life activity exists, depends upon the condition, manner, or duration of the disability.
Occasionally, you run across a few cases that talk about the need to show similarly situated people with respect to disability discrimination, it is clear from these regulations that the DOJ is having none of it.

What’s Wrong with This Job Description? Let Me Count the Ways

November 30, 2015 by William Goren 3 Comments

Hope everyone had a great Thanksgiving! This post is a momentous one so to speak. It is my 200th blog entry (about four years). There is absolutely no way I could have done this without the loyal readers of this blog. Thank you so much!!!!!!! As much as I love to write, writing a blog isn’t always easy. It is the readers of this blog have made it worthwhile and keep me doing it week after week (of course, the ancillary benefit of clients generated doesn’t hurt either:-)

The big newspaper in Atlanta Georgia is the Atlanta Journal-Constitution. On Sundays, they have a section called AJC Jobs. This Sunday, their piece was called, “physical aspects of jobs pose barriers.” The subtitle was, “disabled who want to work may need accommodations.” The article was by a Diane Stafford of the Kansas City Star. It was an interesting article. Here is what I want to focus on. In the article, she says that the following is a real example of the required duties for an accounting job:

“While performing the duties of this job, the employee is regularly required to walk, talk, see and hear. General level of physical activity would be defined as sedentary. The employee is occasionally required to stand and frequently required to sit; use hands to finger, handle, or feel; reach with hands and arms. Some movements of the hands, arms and wrists may involve repetitive motion. Specific vision abilities required by this include close vision, distance vision, color vision, depth perception and ability to adjust focus.”

My thoughts on this job description are as follows:

1. This is an accounting job!

2. This is an accounting job! (I think I said that:-)

3. The employer is confusing major life activities with essential functions of the job. As far back as the first edition of my book, I talked about how this is not something you want to do. What are the essential functions of accounting? Being able to process information? Being able to communicate information? Understanding accounting principles? Utilizing certain software associated with accounting? Interacting with others? Etc. I fail to understand how any of these “essential functions,” listed in the article have anything to do with carrying out the job’s fundamental purposes. It shouldn’t matter the means (in this case, the major life activities utilized by that person), that the person accomplishes the job’s essential purposes, just that he or she gets it accomplished.

4. The job description as written clearly screens out persons with disabilities and is in probable violation of 42 U.S.C. § 12112(b)(6). Hope this particular company has budgeted for litigation.

5. Readers of this blog entry may be interested in this blog of mine as well, which discusses how not to defend essential functions of the job.

6. I don’t see how these requirements could be job-related or consistent with business necessity either (what the employer would have to show in order to be allowed to screen out persons with disabilities under 42 U.S.C. § 12112(b)(6)). See this blog entry for example.

7. When reviewing job descriptions, make sure they are accurate, reflect the realities on the ground, and do not screen out persons with disabilities. If you are going to use major life activities as essential job functions, make sure you absolutely have no choice before doing that. See if you can’t rephrase it some way. If you do have no choice, make sure you are able to show that you have to do that because it was job-related and consistent with business necessity.

8. While we are on the subject of confusing essential functions with other things, another thing I have seen over the years, is confusing essential functions of the job with tasks. Don’t do that either. For example, data entry is an essential function but ten key is not.