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Does having a disability give you a free pass from discipline?

December 9, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

If an employee has been identified as a disabled employee, will his disability protect him from any and all disciplinary actions?  That is a question a trial court in Alabama had to deal with.

In the case of Phillips v. PPG Industries, Phillips was hired by PPG on February 10, 1997 at its manufacturing facility in Huntsville, Alabama.  Phillips worked second shift in the “Finishing Department Seniority Sub-Unit” of PPG.  He had had total hearing loss since 1978. During his employment at PPG, managers communicated with Phillips in writing, including receiving his work instructions in writing.  It was undisputed that he understood them. Throughout his employment at PPG, Phillips received training on many different jobs, and he received pay raises.

While working at PPG, Phillips never alleged any discrimination, harassment or retaliation because of his hearing disability. He had access to PPG’s Human Resources Department to address any perceived disability discrimination, and the Huntsville facility also utilized an ethics hotline for employees to call if they believed they were being harassed. The hotline number was printed on posters which hung on the two bulletin boards at the facility.

PPG also had a drug and alcohol policy (ADI policy) that included random testing. Phillips was familiar with PPG’s ADI policy because he failed a PPG drug screen in 2000. Phillips entered into a rehabilitation agreement (last chance agreement) at that time. The agreement stated Phillips would be subject to additional periodic testing after his return to duty, for a period up to and including sixty (60) months.  The Rehabilitation Agreement also provided that “any future positive screening result . . . may result in immediate termination.” 

Phillips was asked in his deposition if he knew he could be terminated for failing a second drug test.  Phillips answered “Right. That’s why I quit smoking pot.”

He tested clean until May 2013.  On May 14, 2013, Phillips was selected for random drug testing and a hair sample was collected.  Because the selection process was random, some employees were selected more often than others. Phillips believed he was selected more frequently than others, and so did other employees. However, PPG used a third party vendor, a company called “First Advantage,” to randomly select employees for drug testing. Also, the HR team testified that they followed a strict process and do not recommend employees to be tested to the company.

In the May test, Phillips tested positive for the narcotic pain medication, Hydrocodone. Phillips did not dispute the results of that drug test admitting he had taken Hydrocodone. He did not have a prescription for Hydrocodone on that day.

PPG suspended Phillips, and then discovered from the records that he had failed the drug test in 2000 and violated the rehab agreement. This made the 2013 failure his second one, albeit years apart. PPG terminated Phillips.

Phillips appealed the termination through PPG’s appeal process.  He was told in writing that if he could get documentation from his doctor verifying either that he had a valid prescription for the Hydrocodone when his hair sample was taken, or verifying that his doctor had advised Phillips to take his mother’s medication without a prescription, either would be considered a mitigating circumstance.  Phillips could not get the requested documentation.

Phillips sued PPG for unlawful termination under the ADA.  He claimed that (1) he was subject to drug tests more frequently than non-disabled employees and (2) he was terminated for failing a drug test when non-disabled employees weren’t.  However, the evidence presented showed that the random drug testing was out of the control of PPG employees and followed a strict process. 

But more importantly, the court stated that Phillips was not qualified under the ADA.  Even though he had a hearing disability, the issue was not action based on the hearing disability but on his taking the “illegal prescription drug.”  The court stated that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C.A. § 12114(a). Phillips admitted that he had taken Hydrocodone and he did not have a prescription for it.

Finally, Phillips could cite no other employee of PPG at the Huntsville plant who had ever failed a second drug screen and was not terminated.  As a result, the court ruled for PPG in the summary judgement hearing.

This case presents a simple issue that many HR professionals deal with.  An employee who has a known disability can still be disciplined and terminated despite the disability.  Performance still counts, and so do company policies, such as a drug and alcohol policy.  If performance is an issue, there is always a question of a reasonable accommodation.  However, having a disability is not a free pass for avoiding discipline.

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