Sometimes an employee who isn’t making the grade may blame his lackluster performance on the side effects of certain medication he’s taking. Although managers may express some skepticism about that excuse, there are times when a cause-and-effect relationship might exist. That appears to have been the case for a Maine lawyer whose medication apparently caused him to make a bomb threat. Moreover, a growing number of courts have recognized the side-effects-as-disability legal theory under the Americans with Disabilities Act (ADA). 
Background
In 2012, a Maine lawyer admitted to phoning in bomb threats to two schools in Wilton. Despite the seriousness of his offense, the lawyer was able to avoid jail time in his plea agreement. Although his attorney stated during sentencing that his client accepted “full responsibility” for his actions, he also stressed that his client had a multitude of medical ailments and was taking 10 medications a day at the time of the incident. This past October, the lawyer was back in the news when the Maine Overseers of the Bar decided to end his suspension from practicing law. By attributing his actions to the side effects of his medication, the lawyer may have avoided harsher penalties.
Certainly, if an employee makes a bomb threat, you would be well within your rights to terminate him regardless of whether his behavior was influenced by the side effects of his medication. Employers have the right to maintain a safe and efficient workplace. But not every situation is so cut-and-dried. If an employee’s work performance is affected by the medication he’s taking, he may be covered by the ADA and many states’ human rights laws. In that case, we get into the land of interactive dialogue, fitness for duty, and reasonable accommodation.
An evolving area of law
Although the U.S. Supreme Court hasn’t yet weighed in on the issue, a growing number of jurisdictions have recognized that in some circumstances an individual can qualify for protection under the ADA if the medication he is taking has disabling effects, even if the underlying condition wouldn’t qualify as a disability itself. Recently, the U.S. 3rd Circuit Court of Appeals spelled out an approach for dealing with medication side effects in Sulima v. Tobyhanna Army Department.
In that case, an employee was taking weight-loss medication that caused gastrointestinal issues requiring frequent trips to the restroom. The court listed three factors for determining when side effects from medication can be considered a disability. First, the treatment must be necessary according to the prudent judgment of a medical professional. Second, the treatment cannot merely be an “attractive option” for treating the underlying condition. Third, the treatment cannot be required in anticipation of a problem that results solely from the employee’s voluntary choices. Because the weight-loss medication wasn’t deemed “necessary,” the employee wasn’t considered disabled.
It will be interesting to watch this area of the law evolve. The test used in the Sulima case requires an employer to make some difficult assessments (presumably with the advice of a doctor). For example, how do you determine whether weight gain is solely the result of an employee’s voluntary choices?
Dealing with an employee on medication
So what should you do if you suspect an employee’s performance is suffering because of the medication he’s on? Here are a few tips:
- Put safety first, particularly if the employee is in a safety-sensitive job. If workplace safety is at risk, you may need to put the employee out of work. Also, make sure he has a safe way to get home if he appears impaired.
- Discuss the issue with the employee. Ask whether there’s something going on that’s affecting his work. If an employee reveals that he is taking medication, explain that you don’t need medical details (while still sounding supportive) and that your interest is in the employee’s safety and his ability to do the job.
- You may ask the employee to consult with his doctor and provide you with a note stating that he can do the job safely and effectively. You may also require a fitness-for-duty evaluation.
- Consider whether the employee needs a reasonable accommodation. Work with him to explore options, and don’t forget the interactive dialogue. Remember that leave may be an accommodation.
- Reinforce that you cannot accept poor performance, and if the employee’s medications are preventing him from performing his job adequately, you may need to consider alternatives such as leave, reassignment, or, as a last resort, ending the employment relationship.
Takeaway
Sometimes the “blame the meds” excuse may seem to be a stretch. We had a case in which low blood sugar resulting from diabetes allegedly caused an employee to make sexually explicit statements to a female coworker. His disability discrimination case challenging the discipline he received for his misconduct didn’t fly. But at a time when the use (and sometimes abuse) of powerful narcotics is skyrocketing, there’s a real chance that one of your employees may not be able to perform his job because of the side effects of his medication. One thing is for certain: We can surely expect more litigation and case law on this topic.
Connor Beatty is an employment law attorney with Brann & Isaacson in Lewiston, Maine. He may be contacted at cbeatty@brannlaw.com