HR Management & Compliance

Firing of Formerly Drug-addicted Pharmacist Okay Under ADA

Wal-Mart has successfully defended a putative class action alleging that its failure to employ former drug addicts as pharmacists violates the Americans with Disabilities Act. The retailer was able to show that the lead plaintiff was fired because he was previously charged with forging prescriptions — not because of his history of addiction.

The suit stemmed from a recent policy change at Wal-Mart, which called for stores to fire and refuse to hire pharmacy employees who have any history of adverse action against their licenses by a state pharmacy board.

James Bryan, a Wal-Mart pharmacist, was fired under the new policy because the Washington state Board of Pharmacy had previously suspended his license when he became addicted to prescription drugs, according to his complaint. After he completed a supervised rehabilitation program, he was granted a probationary license. Wal-Mart knew about the suspension and hired him first as a pharmacy intern and later as a pharmacist.

When Wal-Mart’s new rule took effect and Bryan was fired, he filed a lawsuit alleging that the policy had a disparate impact on individuals with disabilities — something that can, in certain circumstances, render a policy or standard unlawful under ADA. Wal-Mart’s policy “discriminates against disabled employees because it screens out or tends to screen out qualified individuals with disabilities, i.e., who have been addicted to alcohol or drugs, and/or have a record of chemical or alcohol dependency, and who have successfully participated in a supervised rehabilitation program,” the suit alleged. It also sought back pay, front pay and punitive damages for a nationwide class of similarly situated employees and applicants. In addition, the suit requested an injunction to stop Wal-Mart from implementing the policy.

Wal-Mart, however, filed a motion to dismiss the claims, arguing that Bryan’s license was not suspended because of his addiction. Instead, the employer was able to show that it was suspended because Bryan broke the law to obtain drugs for his own use while working at Rite-Aid Pharmacy. He was arrested and charged with 17 counts of forgery. “To characterize Plaintiff’s termination as having been based on drug addiction is clearly in error,” the company said. “Wal-Mart applied its credentialing policy to terminate Plaintiff, but its doing so terminated the employment of an individual with 17 counts of forgery in his background, an individual who had a record of adverse action taken against him by the Washington Board of Pharmacy, and an individual who was working on less than full credentials.” Bryan’s alleged disability was not the reason for his termination; he was terminated based on the application of the company’s credentialing policy, Wal-Mart said.

The U.S. District Court for the Western District of Washington agreed with Wal-Mart and dismissed Bryan’s suit. Bryan was fired because he forged prescriptions and had his license suspended, not because he was a recovered drug addict, the court said.

The court also dismissed Bryan’s disparate impact claim. The ADA distinguishes between addiction and addiction-related misconduct and Bryan has alleged that under ADA, a person’s addiction disability “trumps” his addition-related misconduct. However, because he could not point to any case to support that claim, it fails, the court said, dismissing the suit (Bryan v. Wal-Mart Stores, Inc., No. 3:13-cv-05934-RBL (W.D. Wash. March 4, 2014)).

For more information on employees with a history of drug addiction, visit Thompson’s HR Compliance Expert.

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