Employment Law Daily Fractured ankle of alcohol-positive chef not ADA disability; zero-tolerance for alcohol not pretext
Friday, March 4, 2016

Fractured ankle of alcohol-positive chef not ADA disability; zero-tolerance for alcohol not pretext

By Deborah Hammonds, J.D. An employee who tested positive for alcohol after fracturing her ankle on the job had her ADA claim tossed on summary judgment after a federal district court in Mississippi concluded that she could not show her injury substantially limited a major life activity or that her termination under the employer’s zero-tolerance policy was pretextual (Clark v. Boyd Tunica, Inc. dba Sam’s Town Hall and Gambling Hall, March 1, 2016, Mills, M.). The employee, a specialty room chef, suffered an on-the-job accident when she tripped over a pipe and fractured her ankle. She was taken to a nearby clinic and, following company policy, the clinic obtained urine and blood samples for drug and alcohol tests. While the urine test came back positive for alcohol, the blood test was negative. The employee was asked to provide information about any medication she was taking to determine if it could have created a false positive. The lab informed the employer that none of her medication could have affected the results, and that the urine test was more accurate than the blood test. The employee was fired for violating the company’s zero-tolerance policy for substance abuse. Filing suit under the ADA, the employee argued that any test showing alcohol in her system at the time of her injury was inaccurate, as she does not drink alcohol; that her diabetes medication could have impacted the accuracy of the results; and that the real reason for her discharge was that she was disabled and could not work. No prima facie showing of substantial limitation. Accepting the employee’s timeline of events, as well as the fact that she was injured—a fact neither party disputed—the court found that while her major life activities (such as walking and/or standing) may have been impaired to some degree, that did not mean she was “substantially limited” in a major life activity as required to make out a prima facie case under the ADA. Relevant considerations, explained the court, included: “(i) the nature and severity of the impairment, (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” A temporary injury, by itself, was not categorically precluded from qualifying as a disability, but “temporary, non-chronic impairments of short duration, with little or no long-term or permanent impact, are not usually disabilities.” Temporary impairments may be covered only if sufficiently severe. After considering the nature and severity of the employee’s injury, the duration of impairment, and the actual or possible long term impact, the court concluded that the employee’s injuries did not substantially limit her major life activities as required to fall under the ADA. The nature and severity of her injury was not particularly egregious or debilitating; the course of treatment proscribed by her physician was not unreasonable; and by her own admission the employee was cleared to return to work within five months with no evidence of any permanent or long-term impact. The court noted that the employee’s evidence was almost entirely directed towards establishing that she was not under the influence at the time of the accident, and/or that she refrained from using alcohol at all. While that may or may not be true, that was an entirely different inquiry than whether she was disabled as a result of her injury. Her single-paged, general medical form, stating she had a fractured ankle and suggesting rest was simply not enough. Not “regarded as” disabled either. The court also found that the employee could not satisfy the ADA’s definition under the “regarded as” prong because her impairment was “transitory and minor.” She was cleared to work after five months, and there was no indication her injury was expected to last more than six months. Moreover, broken bones are generally characterized as being ‘“transitory and minor’” for purposes of ADA disability definitions. For these reasons, summary judgment was appropriate. No pretext. Even if the employee had established a prima facie case, she failed to rebut the non-discriminatory reason given for her termination. Although she argued the alcohol test result was a false positive, her employer’s reliance on an erroneous result and enforcement of its zero-tolerance policy did not create an ADA claim absent an independent showing that the real reason for termination was a disability.

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