They said I was dangerous because of medication I take and fired me. Is that legal?

I was fired from a company because I take medication that causes drowsiness. I woke up late for work twice so they said I was endangering myself at work by putting myself in a harmful situation but I really never did. They just didn’t want to risk insurance costs.

Posted  01-08-2014

Ann Kiernan replies:

I see two issues here: Can your employer fire you for being late, when your lateness was caused by your medication? And can your employer fire you if your medication makes you a direct threat to yourself or others? For purposes of this analysis, I am assuming that your underlying medical condition is a disability under the Americans with Disabilities Act.

Let’s look at the first question. In a 1997 enforcement guidance, the federal Equal Employment Opportunity Commission gives an example that is pretty close to your situation. It found that the employee was properly disciplined for late arrivals, which were caused by medication that made him groggy in the mornings. But, once the employee asked for a later starting time, the employer had an obligation to grant that request as a reasonable accommodation, unless it would cause an undue hardship on the business. Because reasonable accommodation is always prospective, however, the employer was not required to excuse past misconduct.

On the second question, the ADA provides that an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that the individual would pose a “direct threat”, defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” (29 C.F.R. §1630.2(r)). The regulations say that this assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, and considers(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Ibid.

I do not have enough information to determine whether your employer did a proper assessment or not, and urge you to consult with a local employment lawyer about your rights. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.