Terminating an Addicted Employee

Question: “We have an employee who is a chronic prescription drug abuser. He has not been performing at work but every time we try to terminate him for cause, he immediately enters a drug rehabilitation program in order to avoid termination under the ADA, claiming that he has a disability. Does the ADA require that we keep this under-performing employee on our payroll just because he is enrolled in a drug rehabilitation program?

Answer: No, it does not. Although an employee’s status as an alcoholic or a recovering drug addict may merit protection under the ADA in certain circumstances, including when the employee is in rehabilitation and is no longer using, an employee or job applicant is not “a qualified individual with a disability” if he or she is “currently engaging in the illegal use of drugs.”

For a detailed explanation go to: http://www.hreonline.com/HRE/view/story.jhtml?id=534355361

Source: Human Resource Executive – May 22, 2013

EEOC Sues Capital Healthcare Solutions for Disability Discrimination – Health Care Staffing Firm Refused to Hire HIV-Positive Nursing Aide, Federal Agency Says

A leading national health care staffing firm violated federal law by withdrawing an offer of employment to a certified nursing assistant because she was HIV-positive, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced Oct. 5.

The EEOC charges that Pittsburgh-based Capital Healthcare Solutions, Inc. extended a job offer to an experienced certified nursing assistant but unlawfully rescinded the job offer less than one month later based on his disability. The job offer was conditioned on the nursing assistant passing a medical examination. In the medical form, his doctor noted that the certified nursing assistant was HIV-positive, but was not restricted from performing the required job tasks, so long as “universal precautions,” such as gloves and face masks, were used.

Even though the nursing assistant was well-qualified and able to perform the job, Capital Healthcare Solutions withdrew the job offer and refused to hire him because of his disability or because the company regarded him as disabled, the EEOC said in its lawsuit filed in U.S. District Court for the Western District of Pennsylvania, Civil Action No. 2:11-cv-01249.

Refusing to hire a qualified individual because of his disability, record of disability, or because the employer perceives a person as being disabled violates the Americans With Disabilities Act (ADA). The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking injunctive relief barring the company from engaging in disability discrimination in hiring, and monetary relief, including back pay, compensatory and punitive damages on behalf of the nursing assistant. The nursing assistant is also represented by the AIDS Law Project of Pennsylvania, a nonprofit, public-interest law firm providing free legal assistance to people with HIV/AIDS and those affected by the epidemic.

“President Barack Obama has charged federal agencies to implement the National HIV/AIDS Strategy, which includes addressing and preventing employment-related discrimination against people living with HIV,” said Philadelphia regional attorney Debra Lawrence. “This case serves as an example of how the EEOC will strongly enforce federal laws to ensure that qualified people are not wrongfully deprived of an opportunity to earn a living simply because of their HIV status.”

http://www.eeoc.gov/eeoc/newsroom/release/10-5-11a.cfm

Source: U.S. Equal Employment Opportunity Commission – October 5, 2011

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