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Employee Suspected of Drug Diversion Could Not Establish “Regarded as Disabled” Claim

An appellate court recently affirmed summary judgment in favor of a hospital that terminated the employment of a nurse for diverting medications, rejecting her claim that she had been perceived to be a drug addict by her employer. Demastus v. University Health System, Inc., No. E2016-00375-COA-R3-CV (Tenn. Ct. of Appeals March 2, 2017).

Alleging that employer views an individual as disabled from doing one type of job is not sufficient to support a "regarded as" argument under the ADA.

The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation was “substantial.” The 5th U.S. Circuit Court of Appeals recently held that a nurse’s claim that her employer viewed her as unable to perform job duties as a treatment nurse was insufficient to show that the employer viewed her as generally unable to perform as a nurse.

Fitness-for-duty exam does not support a "regarded as disabled" claim.

The Americans with Disabilities Act defines a disabled individual as a person who suffers from a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment, or is being regarded as having such impairment. The “regarded as” provision was established to combat erroneous perceptions that might work to the disadvantage of individuals with impairments that might not rise to the level of an actual disability. The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an individual after that person’s physician found that she was not “fit for duty” as an emergency dispatcher. Wisbey v. City of Lincoln, Nebraska, 8th Circ., No. 09-2100, July 6, 2010. There, the court held that if an action taken by an employer is based upon the recommendation of physicians, then it is not based on myths or stereotypes about impaired individuals, and cannot then establish a violation of the “regarded as” provision of the ADA.

Company’s Adherence To Policies Can Defeat “Regarded As Disabled” Claim.

For the second time in less than a month, a federal appeals court has addressed the issue of whether the termination of an employee, when based upon that individual’s use of prescription medication, leads to the conclusion that the employer regarded the employee as “disabled.” On October 16, the 6th U.S. Circuit Court of Appeals found that an employer’s decision not to recall an individual from layoff based upon that employee’s use of opiate-based prescription medication did not violate the ADA. In that case, the court held that the company did not perceive the employee to be precluded from a broad range of employment positions and, therefore, did not perceive him to be disabled. Daugherty v. Sajar Plastics, No. 05-02787 (6th Circ. October 16, 2008). On October 27, the 8th U.S. Circuit Court of Appeals came to the same conclusion in a similar case, by way of a different rationale.

Successful “Regarded As Disabled” Claim Requires Exclusion From A Broad Range Of Jobs.

In a case that addresses the ADA’s “regarded as disabled” provision, the 6th U.S. Circuit Court of Appeals found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employee’s FMLA retaliation claim to go forward to trial, based upon a manager’s statements related to the same employee’s medical leave.

Employer's Directive For Inpatient Alcohol Treatment Does Not Violate ADA.

An employee may be entitled to the protections of the Americans with Disabilities Act if he is “regarded as” disabled by his employer. An employer regards an employee as disabled when it mistakenly believes that the employee’s impairment substantially limits his ability to work. The “regarded as” provision of the ADA was meant to combat erroneous views related to impaired individuals, and to keep employers from basing employment-related decisions on myths or stereotypes.
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