Articles Posted in Substance Abuse Discrimination

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By Edgar M. Rivera, Esq.

For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions.  It is undisputed, however, that neither plaintiff was actually an alcoholic.

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Edgar M. Rivera, Esq.

On May 22, 2017, in Makinen v. City of New York, the Second Circuit certified the following question: does the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?  The question will be answered by the New York State Court of Appeals.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years.  During their employment, each was referred to the NYPD’s Counseling Service Unit (CSU), which offers treatment and rehabilitation for officers struggling with substance abuse. Once an officer is referred to CSU with alleged alcohol-related problems, a trained counselor conducts an intake interview and contacts references to gather information regarding the officer’s reported alcohol use. If an officer is diagnosed with an alcohol use disorder, CSU staff develops a personal treatment plan, which may include educational videos, counseling, Alcoholics Anonymous meetings, outpatient treatment, or inpatient treatment. An officer who refuses treatment is referred to the NYPD’s Medical Division, which may order the officer to undergo treatment or face disciplinary action. The officer is entitled to challenge the disciplinary action in administrative proceedings by filing a grievance with the agency that oversees CSU or through an Article 78 proceeding. Otherwise, once an officer is diagnosed with an alcohol-related problem, receipt by CSU of subsequent evidence of alcohol consumption triggers a mandatory reassessment and, potentially, further treatment.

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The current regime of laws about marijuana has started to generate new hard cases: those involving employers who take adverse action against their employees for using marijuana to treat severe medical conditions where medical marijuana has become legal under the laws of several states. Many people are now in a seemingly indeterminate legal situation–under state law they can legally use marijuana, but under federal law their employers are free to test them for marijuana and punish them for having used it.

This conflict within the law is real. In states that have legalized medical marijuana, most companies continue to maintain strict anti-drug policies and subject employees to drug testing. Most of the new state laws legalizing medical marijuana have been silent on these questions, in effect allowing employers to punish employees, or refuse to hire them, for legal behavior that is unrelated to their jobs.

One prominent case shows how courts have typically reasoned about these issues. In Casias v. Wal-Mart Stores, Inc., et al., the Federal Court for the Western District of Michigan ruled that, contrary to the Plaintiff’s claim, the relevant state law, the Michigan Medical Marihuana Act (“MMMA”) “addresses potential adverse action by the state; it does not regulate private employment. Accordingly, his claims must be dismissed.” “Under Plaintiff’s theory,” the Court states, “no private employer in Michigan could take any action against an employee based on an employee’s use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan.”

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On July 7, 2014, New York Governor Andrew Cuomo signed into law the Compassionate Care Act, creating a regulatory framework for the controlled growth of a new marijuana industry in the state that could benefit both patients and public coffers. New York becomes the twenty-third state to legalize medical marijuana.

Critics raise many different kinds of objections to the law. Pro-legalization advocates complain that the law is disappointingly limited. It includes a complex array of regulatory requirements including licenses for users and producers; the law sunsets in seven years unless the legislature acts to renew it; it limits possession by individual users to a 30-day supply or 2.5 ounces; it specifies that there can be only five manufacturers producing medical marijuana legally in the state; and the list of diseases for which marijuana can be prescribed arguably leaves out many patients who could benefit. The new law also arguably inflates the drug’s cost by forbidding whole-plant sales, prohibiting production or sale of medical marijuana in its most-common smokable form, and imposing a seven percent tax on the drug.

On the other hand, New York’s law is relatively sweeping in one way: it classifies all individuals who are prescribed medical marijuana as “disabled,” which implies that employers will have to make allowances–and even provide reasonable accommodation for medical marijuana users. We can expect a lot more arguments by legislators, and probably a good amount of legal activity, aimed at deciding exactly which accommodations legal marijuana users must be provided by their employers.

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Under the Americans with Disabilities Act (ADA), alcoholism is a protected disability: an employee cannot legally be fired simply for being an alcoholic. But that protection does not grant alcoholics immunity from workplace performance standards; they can be fired for being intoxicated on the job—or otherwise falling short of expectations—like anyone else.

As articulated by the Chicago Employment Law Blog, alcoholism “has a special place in ADA law.”

The Cornell ILR School website has an excellent guide to this “special” issue. Interestingly, along with “full-blown” alcoholism, “binge”-style excessive drinking is also a protected disability:

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