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Dumb and Dumber: Showing up to Work Under the Influence… Katie Anderson Pete Thompson Dumb and Dumber: Dallas Office Showing Up to Work Under the Influence…. How the District Should Respond To Prevent a Scary Sequel Don’t let this be your employees… 2 1 4 Alcohol • Long complicated history with alcohol in the US • 1920: 18th Amendment to the US Constitution • Prohibition of intoxicating liquors by declaring the production, transport and sale of alcohol illegal • BUT did not ban the consumption or private possession of alcohol • Crime rates soared as gangsters became rich on the black market for alcohol • Corruption was an issue with law enforcement • 1933: 21st Amendment to the US Constitution (repealed) • In 2017, total alcoholic beverage sales in the US are over $211,000,000,0000 ($211 billion) 5 Alcohol • Drinking Problems • The CDC estimates that nearly 14 million US citizens or 1 out of every 13 adults abuses alcohol or has an alcoholism problem. • People aged 12‐20 responsible for 11% of alcohol consumption in US – 90% of this alcohol consumed by binge drinking (4 drinks/women, 5 drinks/men). • 23% of adult men binge drink five times per month. • 12% of adult woman binge drink three times per month. • Excessive alcohol use is responsible for 88,000 deaths in US each year. Source: Fact Sheets: Alcohol and Public Health, CENTERS FOR DISEASE CONTROL AND PREVENTION. 2 6 Drugs • Illegal Drugs • Street drugs (ecstasy, amphetamines, cocaine, crack, methamphetamine, heroin, etc.) • Synthetic drugs (bath salts [LSD], spice/K2 [pot], N‐bomb [LSD]) • Legal Drugs • OTC drugs • Cold meds Dextromethorphan (DXM) • Cough medicine (purple drank) • Rx drugs • Benzodiazepine (benzos) used to sedate, reduce anxiety and relax the muscles (includes Xanax, Ativan, Halcio, Klonopin, Valium, etc.) • Opioids ‐ narcotic pain medications used to treat pain (hydrocodone, OxyContin, Vicodin) • Methylphenidate ‐ Schedule II narcotics (include Ritalin, a/k/a diet coke, kiddie coke, rids, Skittles, Smarties, vitamin R) • Marijuana Source: Dr. Jonathan Horey, Bath Salts Smiles and Spice: The Dangers of Synthetic Drugs, HUFFINGTON POST (June 2, 2016), https://www.huffingtonpost.com/dr‐jonathan‐horey/bath‐salts‐smiles‐and‐spi_b_10260468.html 6 Drugs • Opioid Epidemic • Every day, 91 Americans die from an opioid overdose. • Joint Commission – non‐profit that certifies health care organizations put out new guidelines including: • Requiring hospitals to have leadership team that oversees prescription of opioids • Provide staff with resources to improve pain assessment • Identify opioid treatment programs for patient referrals Source: See Opioid Overdose Crisis, NATIONAL INSTITUTE ON DRUG ABUSE (January 2018). https://www.drugabuse.gov/drugs‐ abuse/opioids/opioid‐overdose‐crisis. Source: Joint Commission Enhances Pain Assessment and Management Requirements for Accredited Hospitals, THE JOINT COMMISSION PERSPECTIVES (July 2017). 3 6 Drugs • Opioid Epidemic • In further response to the crisis, on November 1, 2017, Governor Chris Christie, Chairman of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, submitted the Commission’s Final report with fifty six (56) recommendations to combat the crisis. Those recommendations include: • Block grant federal funding for opioid related activities • Create wide‐reaching media campaign Source: Chairman’s Letter, THE PRESIDENT’S COMMISSION ON COMBATTING DRUG ADDICTION AND THE OPIOID CRISIS (November 1, 2017). 6 Drugs • Marijuana • Laws for recreational use in Washington, Oregon, California, Nevada, Colorado, Maine, Massachusetts, Alaska, and the District of Columbia. • 29 states have now legalized marijuana broadly for medical use. • On January 4, 2018, Attorney General Jeff Sessions issued an enforcement memo that rescinded previous guidance which essentially enabled states to legalize marijuana without federal intervention. • Created confusion on whether it's okay to grow, buy or use marijuana in states where it's legal, since long‐standing federal law prohibits it. Source: State Marijuana Laws in 2017 Map, GOVERNING THE STATES AND LOCALITIES. http://www.governing.com/gov‐data/state‐ marijuana‐laws‐map‐medical‐recreational.html. Source: Jeff Sessions ends policy that let legal pot flourish, CBS NEWS (January 4, 2017), https://www.cbsnews.com/news/jeff‐ sessions‐marijuana‐policy‐announcement/. 4 7 But not MY employees…. • Of the estimated 54 million adult binge drinkers, 80% are employed.* • Of the estimated 20 million adults with substance abuse problems, 61% have been employed full‐time.* • Estimates that 9‐10% of full‐time workforce have a current drug or alcohol problem.** • Growing number of districts are exploring random drug testing of staff in a safety sensitive position, but this is still uncommon. *Source: Nancy E. Marion and William M. Oliver, Drugs in American Society: An Encyclopedia of History, Politics, Culture, and the Law, ABC‐CLIO (2014). **Source: Robert Preidt, Substance abuse a problem for America’ s workforce, CBS NEWS (April 16, 2015). https://www.cbsnews.com/news/substance‐abuse‐a‐problem‐for‐americas‐workforce/. ADA and ADA Amendments of 2008 • Alcoholism can qualify as a disability under Americans with Disability Act (ADA). • ADA defines disability as: • a physical or mental impairment that substantially limits one or more of the major life activities of an individual; • a record of such an impairment; and • being regarded as having such an impairment • ADA Amendments of 2008 (ADAAA) was passed to expand coverage and broadened the range of life activities. • Impairment no longer needs to prevent or significantly restrict a major life activity. 5 ADA and ADAAA of 2008 • Employers often attach stigma to alcoholism that is not apparent with other ADA‐covered conditions. • Addiction has a genetic component that can significantly impact a person’s susceptibility. • Drug addiction and alcoholism can be managed, as can other chronic conditions such as diabetes, asthma, or heart disease. • A reasonable accommodation for such an employee may include granting leave to attend an Alcoholics Anonymous meeting or rehabilitation program. Caselaw: Conduct vs. Condition • Salley v. Circuit City Stores, 160 F.3d 977 (3d Cir. 1998). • Salley was Circuit City Manager who recovered from heroin use and became productive employee. He relapsed after ten years of sobriety. • Discussed drugs at workplace • Reported to work under influence of drugs • Reported late to work because of drug use • Left work to use drugs • Failed to report subordinate’s drug use • Engaged in drug use with subordinate • Court found that Circuit City had legitimate non‐discriminatory reason to fire Salley – concerned his acts would harm business. 6 Caselaw: Conduct vs. Condition • Klaper v. Cypress Hills Cemetery, No. 10‐CV‐1811 (NGG) (LB), 2014 U.S. Dist. LEXIS 46470, at *32‐34 (E.D.N.Y. Mar. 31, 2014) • Klaper was cemetery groundskeeper who made threats of physical violence against co‐worker. Agreed to attend rehab for drinking problem. Failed to show up to work upon his official return date – and failed to show up for five more days. Was terminated. • Court found that “[t]he ADA does not require that employers tolerate misconduct traceable to an employee's alcoholism, nor does it protect alcoholics from the consequences of their own behavior.” • The court determined that the cemetery company already provided a reasonable accommodation when it rescinded the initial termination and allowed the employee to seek treatment. Caselaw: Conduct vs. Condition • Barnett v. Sch. District of Lancaster, No. 14‐2414, 2015 U.S. Dist. LEXIS 36565 (E.D. Pa. Mar. 24, 2015) • Woman was well‐regarded substitute teacher – certified, experienced, and qualified for K‐12. School rated her performance as outstanding. Given full‐time job and was lauded for exemplary performance by assistant principal in November 2011. • In December 2011, she mentioned to principal that she was a recovering alcoholic. • In January 2012, principal suddenly rated her performance as unsatisfactory – accused her of incompetence and forced her to resign. • The court examined her previous positive evaluations and the temporal relationship between her disclosure and the principal’s negative evaluation of her. • Court determined that the school based its adverse employment decision on her disability and it was therefore discriminatory. 7 Caselaw: Conduct vs. Condition • Larkin v. Methacton Sch. Dist., 773 F. Supp. 2d 508, 513 (E.D. Pa. 2011) • Woman arrived at school after night of drinking and drank bottle of cough syrup to satisfy craving for alcohol. District officials confronted her, and she submitted to BAC test. Was three times legal limit, so entered treatment program. • Upon return, she asked for transfer to get away from “people, places, things” that triggered her alcoholism. She wanted to go to another school in district that had opening – but she did not get job. She sued and alleged that school district did not make accommodation for her. • Court found that Larkin did not plead any facts that demonstrated how her alcoholism impacted a major life activity – such as walking, learning, working, etc. • Might have prevailed if she had presented evidence that showed how her alcoholism impaired her thinking. • Must make factual showing. Caselaw: Conduct vs. Condition • ADA may apply in a situation where an employee expresses that she/he • has previously had a drinking or drug problem; • provides a specific explanation as to how it has impacted her/his ability to do their job (particularly if it impacts “thinking”);
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