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.

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