Or “How To Lose An ADA Case Even When The Plaintiff Is Not Disabled.”


It has been my experience over the years that managers and HR people tend to love “no fault” policies.  In my experience, the concept of no fault policies really started many years ago with attendance policies.  You know what I mean.  Miss work and get a point or whatever it is that your company calls the black mark in the book.  Get so many points and you are out the door.  Does not matter why, only that you got the point.  Of course, this sort of policy created a bunch of really hard to believe results.  For example, when I was a shop floor supervisor many years ago, the company I worked for actually fired a guy who missed work because his wife was having a baby.  No kidding, that was his last point and out the door he went!  Now all of this was before the ADA and FMLA and all of the other nice new federal and state laws we have limiting our right to do this kind of thing.  With these statutes in place you would think that the concept of no fault policies would have gone the way of the DoDo, but not so.  No fault has simply moved to other policies and changed its name.  Now we call it “zero tolerance.”  For example, we have zero tolerance workplace violence policies.  Bring a weapon to work (or school) and out the door you go.  Seems like a good idea doesn’t it?  What could go wrong?  How about suspending a 17 year old A student for bringing an African tribal knife to school for a project?  Violation of the policy, out you go.  But that is school you are all saying, and school is different, that stuff does not happen at work.  Really?  Let’s ask XYZ Corp (I changed the name, but it is a real case).  You see XYZ was faced with a problem, too many on the job accidents costing lots of money.  XYZ management was convinced that drugs were the problem.  So, XYZ put a policy in place that allowed them to drug test everyone in the plant.  So far so good.  But XYZ determined that it was not just illegal drugs that were causing the problem.  Some legal drugs can cause trouble too, so XYZ added a list of specified drugs to the testing protocol.  If a prescription drug contained a warning label against operating heavy machinery, on the list it went.  Fail a screen and you are suspended, fail again and out you go.  Zero tolerance.  Simple solution for the employees on prescription drugs right, bring in a doctor’s note saying that you are OK to work.  Nope, XYZ didn’t care.  Test positive and out you go.  We don’t care why.


Well, a bunch of employees on prescription drugs that were let go under the policy did care, and they sued.  They sued for a bunch of stuff, but what is really important to us is they sued under the Americans with Disabilities Act (the old one before the amendments made this kind of case even easier).  XYZ defended by saying none of these people are disabled, have a record of a disability or are regarded as disabled; no ADA case.  The court said you are right, they are not disabled, we don’t care.  Certain portions of the ADA, including the sections at issue here protect everyone, not just the disabled.  XYZ said but the policy is justified by business necessity, we should not have to wait for someone to get hurt to drug test.   The court said you are right, maintaining safety is a business necessity, we don’t care.  So how come XYZ didn’t get summary judgment?  Because the court said you can’t have a zero tolerance policy like this that does not take into account individualized circumstances.  The court held: “While XYZ’s medical screening program is based on the sound goal of “workplace safety,” a reasonable juror could very well find that the screening is “broader [and] more intrusive than necessary” because XYZ automatically excludes all employees who take certain medications from working in any capacity at XYZ, without any regard for individualized circumstances.”


Looks like the court had zero tolerance for XYZ’s zero tolerance policy.


So what the heck is the moral of this story?  You have an HR department for a reason and it is almost always a bad idea to try to craft a policy that takes into account every situation and provides a pat answer for that problem.  That is what tends to create these ridiculous results and leads to laws we don’t want and regulations we can’t live with.  Let your managers manage and teach them how to do it right.  It is almost always a bad idea to take the “human” out of “human resources.”