The Circuit Split on Whether Disability-Related Conduct is a Disability Itself

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Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

Federal Appellate Courts disagree on whether terminating an employee based on disability-related intoxication constitutes disability-related discrimination under the Americans with Disabilities Act (“ADA”).[1] It is crucial that the law recognize the significance of this question, as it impacts nearly 60 million adults in the United States living with a disability.[2] Almost 70% of the disabled adult population reported having been prescribed at least one medication.[3] Many of those adults experience non-ameliorative effects from the medication that alter the user’s behavior, as an estimated 69% of drugs have between 10 and 100 different side effects, and each drug has about 68 possible side-effects on average.[4] 

A person with a disability that is intoxicated due to taking medication as prescribed should be regarded as a person with a disability under the ADA. Conduct that results directly from a disability—including medication-related intoxication—should be considered part of that disability. 

II. Legal Background

A. Statutory Law

Under the ADA, employers cannot discharge a qualified employee on the basis of disability.[5] An individual with a disability is a person who (1) has a physical or mental impairment that substantially limits major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.[6]  

Employers are required to provide reasonable accommodations for individuals with disabilities to remove workplace barriers, regardless of what effect medication may have on an employee’s ability to perform the job.[7] However, if an employee with or without reasonable accommodation cannot perform the essential functions of the position or poses a direct threat to health or safety in the workplace, that employer has a legitimate reason to terminate the employee.[8] Likewise, an employer may terminate a worker if the termination is unrelated to the disability.[9] Importantly, however, employers are not obligated to make any reasonable accommodations for employees who are illegal drug users or alcoholics.[10] Under the ADA, a qualified individual with a disability does not include an employee that is currently engaged in the illegal use of drugs or alcohol.[11] Accordingly, an entity may prohibit illegal drugs and alcohol at the workplace, and partaking in such substances is a permissible reason for termination.[12]  

B. Caselaw

In 2006, the Ninth Circuit decided Dark v. Curry County which addressed whether disability-related conduct constitutes a disability. The plaintiff, Dark, had a seizure while operating a truck due to a change in medication for his diagnosed epilepsy.[13] The morning of the incident, Dark experienced an aura, which indicates the potential for a seizure later that day.[14] After the accident, Dark received a termination letter that detailed aspects of the incident and explained that a seizure-free condition was critical to workers in Dark’s occupation.[15] The Board of Commissioners affirmed Dark’s termination and reasoned that by operating the truck on that day, Dark knowingly put the safety of himself and the public in jeopardy.[16] Dark sued the county, alleging it refused to reasonably accommodate his disability before discharge.[17] 

The district court granted summary judgement in favor of the employer, but the Ninth Circuit reversed that decision on appeal.[18] The County argued that Dark’s termination was not discrimination because it resulted from misconduct or failure to meet legitimate job expectations.[19] The appellate court found that even if the Board’s explanation that the County terminated Dark for misconduct was legitimate and non-discriminatory, it must consider the County’s termination letter as well.[20] The court explained that an employer may discriminate against an employee even if animus toward an employee’s disability was only one of the motivating factors for termination.[21] The court held that, with few exceptions, “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.”[22]  Thus, the court determined that, as a matter of law, the County had not proven that it had a legitimate, nondiscriminatory explanation for Dark’s discharge.[23]

In 2012, the Fourth Circuit came to the opposite conclusion in Halpern v. Wake Forest University Health Sciences.[24] The plaintiff, Halpern, brought an action alleging that his dismissal from Wake Forest’s Doctors of Medicine Program for unprofessional behavior violated the ADA.[25] Halpern was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), for which he took prescribed medicine.[26] Halpern displayed behavioral issues and eventually went on medical leave to address the severe side effects of his medications.[27] Halpern’s behavioral issues subsided for a period of time, but after they returned, he was expelled from school.[28] The court upheld summary judgment in favor of the university, holding that misconduct, even when related to a disability, is not a disability in and of itself, and therefore may be a basis for dismissal.[29]

III. Discussion

Terminating a person with a disability for the sole reason that they experience prescription medication-related side effects, including intoxication, should be considered discrimination under the ADA. 

To be clear, the standard is not that a person with a disability is invincible against termination. Not all conduct engaged in by a person with a disability is directly related to that disability.[30] Furthermore, termination is appropriate if an employer makes reasonable accommodations and the unacceptable conduct continues, there remains a continued threat to health and safety, or the person is unqualified for the position.[31] The same standards should apply to a person that is intoxicated or behaves a certain way due to their prescribed medication. This outcome is legally logical, statutorily correct, and publicly beneficial.

A. Statutory Analysis

The ADA’s protection should extend to a person with a disability who becomes intoxicated due to taking disability-related medication as prescribed. Employers are generally prohibited from making medical inquiries, including asking employees which medications they are on.[32] It follows that an employer is required to permit employees to take prescription medications, and these medications may have positive and negative side effects. While ameliorative effects of mitigating measures should not be considered when assessing whether an individual has a disability, negative side effects of medication and other non-ameliorative effects of mitigating measures may be considered.[33] Therefore, side effects, and the conduct that results from them, are part of the disability. Terminating an employee because they are intoxicated as a result of their medication should be considered discrimination on the basis of a disability. Furthermore, the clarification that employers need not make any reasonable accommodations for employees who are illegal drug users and alcoholics implies that legal drugs and other disability-related conduct are protected.[34] 

B. Caselaw Analysis

The broad holding in Dark—that conduct directly resulting from a disability is intertwined with that disability—follows a more logical thought pattern than the court’s reasoning in Halpern.[35] Management of a disability cannot be separated from that disability. For example, some narcolepsy medication have been reported to make patients shaky.[36] Although shakiness is not a symptom of narcolepsy, it nonetheless comes with the disability.[37] But for the narcolepsy, the patient would not be shaky.[38] It does not mean a hospital has to employ the narcoleptic as a surgeon, but it does mean the narcoleptic should receive the same protections under the ADA both before and after being treated for the disability.   

C. Public Policy

Considering conduct that results both from a disability and from medication taken in connection with that disability as covered by the ADA is beneficial to the public at large. This ADA interpretation will ensure that people with disabilities are better protected, and thus able to feel more confident in taking necessary medication as prescribed. To hold otherwise would discourage people from taking medicine with visible side effects or may encourage people to alter their medication as prescribed. Courts should allow people to find the treatment that best works for their disability and their body without fear that they might lose their job if they react unexpectedly to their prescription. The general public benefits when the law protects people’s safety, health, and wellness. 

IV. Conclusion

A person with a disability may have to take medication to treat that disability. Employers should abide by, and courts should enforce, the guidelines provided by the ADA that prohibit termination of an employee based on their disability regardless of whether a person is required to consume disability-related medication. Conduct that is a direct result of a disability—including taking and displaying effects from medication—should be considered part of the disability under the ADA.


References

[1] Caporicci v. Chipotle Mexican Grill, Inc., 729 F. App’x 812, 816 (11th Cir. 2018).

[2] Disability Impacts All of Us, Ctr for Disease Control and Prevention: Disability and Health Promotion (Sept. 16, 2020), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.

[3] Jae Kennedy and Christopher Erb, Prescription Noncompliance due to Cost Among Adults With Disabilities in the United States, 70 Am J. Pub. Heath 1120 (2002).

[4] Ping Zhang, et. al., Exploring the Relationship Between Drug Side-Effects and Therapeutic Indications, AMIA Annu. Symp. Proc. (2013).

[5] 42 U.S.C. § 12112.

[6] 29 C.F.R. § 1630.2.

[7] Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, U.S. Equal Employment Opportunity Commission (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_106_.

[8] Id.

[9] Applying Performance and Conduct Standards to Employees with Disabilities, U.S. Equal Employment Opportunity Commission (Sept. 3, 2008), https://www.eeoc.gov/laws/guidance/applying-performance-and-conduct-standards-employees-disabilities.

[10] 42 U.S.C. § 12114.

[11] Id.

[12] Id.

[13] Dark v. Curry Cty., 451 F.3d 1078, 1084 (9th Cir. 2006).

[14] Id. at 1081. 

[15] Id.

[16] Id. at 1083.

[17] Id. at 1081.

[18] Id. at 1091. 

[19] Id. at 1083.

[20] Id. at 1084.

[21] Id.

[22] Id.

[23] Id.

[24] 669 F.3d 454, 465 (4th Cir. 2012).

[25] Id. at 460.

[26] Id. at 457.

[27] Id. at 458.

[28] Id. at 459.

[29] Id. at 465.

[30] Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1095 (9th Cir. 2007) (instructing the jury that conduct resulting from a disability is part of the disability and not a separate basis for termination; furthermore, instructing that the conduct does not grant an employee absolute protection from adverse employment actions based on disability-related conduct because employers may show business necessity or direct threat to justify their disciplinary actions).

[31] Employers and the ADA: Myths and Facts, U.S. Department of Labor (last visited Sept. 21, 2021), https://www.dol.gov/agencies/odep/publications/fact-sheets/americans-with-disabilities-act.

[32] 29 C.F.R. §1630.13.

[33] 28 C.F.R. §35.108(c).

[34] Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir. 1997) (reasoning that because Congress only expressly permitted employers to hold illegal drug users and alcoholics to the same standards of conduct as other employees, even though their disability causes misconduct or poor performance, Congress implicitly did not intend to extend the same employer prerogative to employees with other disabilities; the “disability v. disability-caused misconduct” dichotomy is unique to illicit drug users and alcoholics.).

[35] Dark v. Curry Cty., 451 F.3d 1078 (9th Cir. 2006); Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012). But see Caporicci v. Chipotle Mexican Grill, Inc., 729 F. App’x 812 (declining to answer the question of whether disability-related intoxication is a disability).

[36] Narcolepsy Fact Sheet, Nat’l Institute of Neurological Disorders and Stroke (Sept. 30, 2020), https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Narcolepsy-Fact-Sheet#3201_7.

[37] Id.

[38] Id.