Split Personality–Part 2
"You two have exactly the same name?" Quinn asked, raising an eyebrow.
"Yes. Caldonia often comes and works for me."
Quinn began to feel as if he were a psychiatrist in session with a severely delusionary patient, but he decided to play along. "Tell me," he asked, "did we hire you or did we hire your sister?"
"You hired me," she stated clearly.
"Of course I'm sure," she said, unwavering.
"But your sister works for us, too?" he continued.
"Every day? Every other day? Half days?"
"It varies," she responded.
"Well, then, whose back was hurt? Was it yours or your sister's? Whose urine test was it the first time? And whose test was it the second time? Who screamed at me both times on the phone? Who am I dealing with in the office?" he asked impatiently.
"We switch around a lot. And I'm not going to tell you who was over there at which time and who wasn't," Caldonia held fast.
"You know something, Caldonia, I really don't care. As far as I'm concerned, you're both fired!" he announced, convinced she was wacky. Quinn called security and had Caldonia escorted from the building.
But was Caldonia really more wiley than wacky? She retained an attorney, claiming that her back injury had become disabling. Unfortunately, the company couldn't prove that Caldonia was "under the influence" of cocaine when she sustained her injury because they administered the test well after the actual injury occurred. To avoid a protracted legal battle, they settled out of court for about $8,000.
The company made three mistakes in this situation. First of all, it is critical that any policy regarding drug testing be carefully designed and followed to the letter. Once the company makes a decision to test, it should arrange for the test, preferably the same day. Scheduling the test for the next day was a mistake that only complicated the situation.
Second, Quinn Forrest's decision to allow the employee to take the test again was a serious error. Assuming that a certified lab took and analyzed the sample properly and barring any question about the "chain of custody," retesting was inappropriate. This action casts doubt on the integrity of the first test, sets a precedent for future cases, and would certainly complicate any subsequent litigation.
When using an outside lab, make sure the lab has appropriate procedures for maintaining chain of custody. For example, a good chain of custody procedure divides the original sample into two portions. One portion is tested, and the other is frozen and retained for one year in case of a dispute. Assuming the lab followed this type of procedure, Caldonia's contention would have been groundless.
Finally, the company should not have tolerated Caldonia's previous disruptive behavior. Her supervisor or Quinn should have suggested that Caldonia seek assistance from the company's employee assistance program, if available, during their counseling sessions. Repeated instances of unacceptable conduct should result in termination of employment. She was playing games with them. Employers should not be required to endure disruptive co-workers.
Despite Quinn's mistakes, a number of us feel this company should consider itself lucky to escape with only an $8,000 no-fault settlement. Typically, workers' compensation cases can run to five or six figures, exclusive of attorney's fees. We consider the $8,000 an inexpensive way to rid themselves of an ongoing problem employee!
This story warrants some clarification on the issue of medical examinations, workers' compensation claims, and drug testing as they apply to the Americans with Disabilities Act (ADA).
Not all employees injured on the job will meet the "disability" definition required for protection under the ADA. Work-related injuries do not always cause physical or mental impairment severe enough to "substantially limit" a major life activity. Conversely, many employees may be disabled for reasons wholly unrelated to the workplace.
The ADA imposes restrictions regarding medical examinations. Employers may not require a job applicant to take a medical exam or respond to inquiries about his or her health unless (a) the pre-employment medical exam is requested after a conditional offer of employment has been made and (b) the employer requires the examination of all entering employees in the same job category. The ADA requires that any examination of an employee must be "job-related and consistent with business necessity."
A medical examination of an employee may meet the requirement of job-relatedness and business necessity if such an examination is required to determine if the individual can perform the essential functions of the job or to determine what accommodation might enable the individual to perform the essential functions of the job. Generally, if an employee has an on-the-job injury that seems to affect the employee's ability to perform the essential job functions or the employee wishes to return from a job-related disability leave, then a medical exam or "fitness for duty" exam would most likely meet the "job-relatedness and consistent with business necessity" requirement.
To further confuse the subject, a pre-employment drug test is not considered a pre-employment medical exam under the ADA, and an employer can test an employee for illegal drug use even if the test is not job-related and consistent with business necessity. However, a blood alcohol test is considered a medical examination and can only be required in conformity with the ADA–it must be job-related and consistent with business necessity. Again, aside from ADA considerations, employers should ascertain the status of state and local drug testing laws before developing or implementing a workplace drug testing policy.
An employee or applicant who is currently engaged in the illegal use of drugs is not disabled under the ADA. On the other hand, drug users who have been rehabilitated, or who are participating in a supervised rehabilitation program and are not currently using drugs, or who are erroneously regarded as engaging in the use of illegal drugs, are protected by the ADA.
Unlike the ADA, some state and local laws treat drug abuse as protected disabilities even if the affected person is not recovered or in a treatment program. Employers are well advised to check the law in their state or locality before making any employment decisions based on known or suspected drug abuse of an employee (or an applicant).
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©