United States: In Recent Disability Discrimination Cases In Washington, Courts Second-Guess Employers' Reasonable Interpretations Of Their Handbooks And Question Their Well-Founded Safety Concerns In Finding Discrimination

It would seem that employers in heavily regulated or safety-conscious industries would have latitude to draft and implement safety-related policies that address legitimate safety concerns and ensure compliance with the law. After all, they are the experts. But in two recent published Washington cases, the courts have made clear that they will second-guess an employer's interpretation of its policies, regardless of how reasonable that interpretation is, and will question an employer's well-founded safety concerns, when the employer's policies and safety concerns result in the discharge of a disabled employee.

The Cases

In the first case, Clipse v. CDS, decided on August 25, 2015, the plaintiff, Clipse, was a truck driver who was taking methadone for chronic shoulder pain. The Federal Motor Carrier Administration ("FMCA") has guidelines prohibiting drivers on methadone from operating trucks because methadone slows reflexes.

Shortly after being hired as an instructor by defendant CDS, a truck driving school, Clipse took a drug test and failed. He provided CDS with a doctor's note saying he could safely drive a truck while taking methadone. CDS fired him anyway based on the FMCA guidelines. CDS also cited a zero-tolerance drug policy in its handbook, which prohibited the use of "illegal drugs" by its employees.

Clipse sued, alleging disability discrimination. He claimed that dulled reflexes from methadone was a disability and that he was fired because of that disability. He also contended that CDS failed to accommodate his disability in violation of the disability discrimination law. CDS moved to dismiss the case. The court denied the motion, the case went to trial, and Clipse won.

On appeal, CDS argued that it could fire Clipse because federal law does not permit him to operate trucks while on methadone and because it has a zero-tolerance drug policy. CDS also argued that it did not have to accommodate Clipse's disability because an accommodation is required only if Clipse could perform the essential functions of his job and Clipse could not do that because federal law prohibited him from driving trucks.

The Washington Court of Appeals rejected CDS's arguments. According to the court, it was unclear whether federal law prohibits driving a truck while on methadone. It cited regulations by agencies other than the FMCA that allow a driver to operate a truck while on methadone with a doctor's note. The court held that it was also unclear whether CDS's handbook prohibited the use of methadone. The handbook referred to "illegal drugs" but, as the court stressed, the term was not defined. Interpreting the term narrowly, the court held that Clipse was not using an "illegal drug" when he took methadone because he had a prescription. Consequently, the court ruled the jury was free to conclude that CDS discriminated against Clipse based on a disability.

The second case, decided on September 10, 2015, is Kries v. WA-SPOK Primary Care, LLC. The plaintiff, Kries, was a medical assistant who applied for a job with defendant, a women's clinic. She was asked to disclose her medical history. She did not disclose her recent weight-loss surgery or the wound still healing on her stomach.

After starting the job, she had complications from her surgery and had to have another surgery that left her with a drain that exited her stomach wound. The defendant, which gave her leave for the surgery, would not let her return to work. It cited its infection control policy, which said "No one is allowed to work with an open or draining wound."

Over the next few months, Kries asked to return to work. The clinic refused her request. During this time, Kries had four infections, one of which required hospitalization. She eventually used up her leave time and was fired.

She sued for disability discrimination. The trial court dismissed the case. But the Washington Court of Appeals reversed, holding there were issues of fact for trial.

The court held that the infection control policy was ambiguous. While the term "draining wound" seemed clear to a layperson (applying to a wound that is draining), the court stated that the term was ambiguous because it was not defined. The court cited medical testimony from an expert hired by Kries. That expert testified that, medically speaking, the term "draining wound" has special meaning. It does not mean any draining wound but is limited to a wound where the draining is not controlled or contained. Thus, the court held, a jury would have to decide how to interpret the policy.

The court also cited the "return to work" policy in the clinic's handbook, which said that an employee could return to work if a wound can be "completely covered." The court said the two policies conflicted and a jury needed to resolve the conflict.

The Takeaway

In Clipse and Kries, the employers had legitimate safety concerns. CDS was concerned about Clipse's ability to drive trucks due to the side effects of methadone. It also wanted to ensure it complied with FMCA guidelines barring drivers from operating trucks while taking methadone. In Kries, the clinic was concerned about infectious diseases from Kries' draining wound – concerns that turned out to be well founded since Kries' wound was infected four times while she was on leave. Relying on policies that seemingly addressed those concerns (and, in CDS, the FMCA guidelines), the employers discharged the employees.

But in both cases, the Washington courts second-guessed the employers' reasonable interpretations of their policies. Putting those policies under the microscope, the courts cited the fact that the terms "illegal drugs" and "draining wounds" were not defined and could theoretically be subject to interpretations other than the ones used by the employers. And the courts second-guessed the employers' reasonable safety concerns. The court in Kries questioned whether Kries' draining wound really posed a risk of infection while the court in Clipse cited the fact that regulatory agencies permitted drivers with prescriptions for methadone to drive, as if that excused CDS' violation of FMCA guidelines that prohibited drivers from operating trucks while using methadone.

In light of these rulings, employers in Washington must ensure that their handbooks are not only clear, but are crystal clear, if they intend to rely on them to discharge employees with disabilities. This is so even for safety provisions of handbooks in heavily-regulated or safety-conscious industries. Do not assume that courts will enforce common sense meanings of those terms. In addition, in Washington, if the employer intends to cite safety concerns for discharging a disabled employee, that safety reason must be beyond question, at least to ensure that a case will be dismissed before trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions