employee ’ s original prescribing doctor was asked “whether the employee was stable on their safety-sensitive medication or whether alternative medications were available that were as effective.” Id. If no alternative medications were available, and the employee was determined unable to safely work while taking the medication, the employee was deemed “disabled.” Id. In 2016, two AFS employees affected by the Policy filed discrimination charges with the EEOC. The EEOC found reasonable cause that AFS violated the ADA by “not allowing a class of individuals ‘ to continue to work or return to work while taking their disability-related medications. ’ ” Id. Further, the EEOC held that AFS’ Policy itself had “the effect of discrimination on the basis of disability” and violated the ADA. Id. at 3. The EEOC subsequently filed suit against AFS on behalf of 17 AFS employees who suffered from different disabilities, but were legally prescribed medications and required to undergo medical evaluations to return to work. Id. The EEOC brought four claims against AFS, including: (1) Discrimination on the Basis of Disability; (2) Failure to Accommodate; (3) Impermissible Qualification Standard; and (4) Interference. Id. AFS asserted that the EEOC ’ s claims for eight of the 17 claimants were time-barred, as their claims arose more than 180 days before the “representative charge” was filed with the EEOC. Id. The court found that § 706(e)(1) precluded the EEOC “from pursuing claims that arose outside the charging period, even when those untimely claims are related to otherwise timely claims.” Id. at *15. While the parties disagreed as to what date the “representative charge” was filed with the EEOC, the court held that any claims that arose prior to May 23, 2016 (180 days before one of the representative charges were filed), were time-barred. Id. at *20. As such, the court dismissed seven of the claimants from the EEOC ’ s lawsuit. Id. The court ’ s first step in analyzing the EEOC ’ s disability discrimination claim was determining whether the claimants with timely claims experienced adverse employment actions. The court rejected the EEOC ’ s argument that requiring the claimants to stop using their prescription medications was an adverse action, and held that merely being required to stop using certain prescription medications, without more, did not have a tangible adverse effect on employment of the claimants. Id. at *23. In making this determination, the court explained that “[w]hether the employer ’ s conduct constitutes an actionable adverse employment action under the ADA is determined by whether a reasonable person in the plaintiff ’ s position would view the employment action in question as adverse.” Id. The court noted that while AFS required the claimants to sign a document acknowledging that their medications were “inappropriate for use in a safety sensitive work environment” and could result in discipline for employees if caught taking the medications, the court held that “neither signing a form nor fear of termination are sufficient to constitute an adverse employment action.” Id. at *24. The court also considered whether AFS, as a means of providing a disability accommodation, could place employees on unpaid leave until they either received medical clearance to return to work or agreed to stop taking their medications. Id. at *25. The court rejected the notion that temporary leave is an accommodation rather than an adverse action. It reasoned that AFS “unilaterally forced the claimants on unpaid leave and did so without an accommodation request by the claimants or without any showing that the claimants could not actually perform their job duties either with or without their prescription medications.” Id. at *27. Thus, the court denied summary judgment as to the claims of four AFS employees who alleged they suffered an adverse employment action after
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© Duane Morris LLP 2024
The EEOC Litigation Review – 2024
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