Week In Review

April 25, 2016

Pennsylvania’s New Medical Marijuana Law
On April 17, Pennsylvania Governor Tom Wolf signed Senate Bill 3, legalizing medical marijuana in Pennsylvania. The legislation provides that “no employer may discharge, threaten, or refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location, or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.” This protection does not extend to recreational users of marijuana. The legislation further provides that it does not require an employer “to make any accommodation of the use of medical marijuana on the property or premises of any place of employment or shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position.”

Employee’s Failure to Participate in Interactive Process in Good Faith is Fatal to ADA Accommodation Claim
A federal court recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. The Court found the employee had failed to present evidence that her employer did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to her employer’s proposed accommodations.

Employee was an industrial engineer who had been diagnosed with Asperger’s Syndrome. After significant job performance issues, Employee provided Employer with a letter from her doctor describing her condition and requesting that she receive all work instructions in writing. After discussing this accommodation with Employee, Employer agreed to provide all work instructions in verbal and written form.

Employer then placed Employee on medical leave so it could evaluate her condition and determine the feasibility of accommodations. While she was on leave, Employee requested a number of different and contradictory accommodations, including reversing her previous request for written instructions and then insisting on a permanent job coach.

When Employer requested that Employee submit to an independent medical evaluation, Employee canceled scheduled exams and made a variety of extraordinary requests, such as demanding that a personal assistant accompany Employee to the exam. As a result, Employee never submitted to an examination.

Additionally, when Employee finally returned from medical leave, she failed to complete her assigned tasks and appeared to be spending the majority of her time at work attempting to build a lawsuit against Employer. Indeed, even though Employer provided Employee with job coaches, she failed to use these resources to improve her job performance and instead sought to use the coaches as witnesses for a potential lawsuit against the company. When Employer ultimately terminated Employee for poor performance she filed suit alleging discrimination, retaliation and failure to accommodate her disability in violation of the ADA and state law.

The responsibility of employers to engage in the interactive process in good faith is frequently the central focus in ADA failure to accommodate claims. However, this case makes clear that employees have a similar obligation and that those who abuse this process, hinder examinations, and fail to avail themselves of offered accommodations are unlikely to find courts sympathetic. Consequently, employers should thoughtfully participate in the interactive process and document all steps taken with the expectation that even if the process is ultimately unsuccessful, an employer’s good faith efforts will often be sufficient to defeat any subsequent lawsuit for failure to accommodate under the ADA.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at sesco@sescomgt.com