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Drug Screens

Post-Accident Drug Testing Prompts ADA Questions

A jury will have to decide whether an employer's post-accident drug testing constitutes a "disability-related inquiry" in violation of the ADA.
By: | September 19, 2014 • 5 min read
urinalysis

A window manufacturer could be forced to pay a large jury award and punitive damages because of its drug testing policies. A U.S. appeals court has sent the case back to a lower court to determine whether the employer’s tests violated the Americans with Disabilities Act.

The case, Bates, et al. v. Dura Automotive Systems Inc., presents a cautionary tale for employers seeking to prevent workplace injuries through drug screening. While the federal District Court had ruled in favor of the plaintiffs, the appellate court’s decision leaves the fate of the employer in the hands of a jury.

The Case

Testing the boundaries of what constitutes a medical examination or disability-related inquiry, Dura’s drug testing policy requiring disclosure of prescription medications raised questions that should be decided by a jury, the 6th U.S. Circuit Court of Appeals said. In reversing the ruling by the U.S. District Court, Middle District of Tennessee that the ADA prohibited the testing, the appeals court said the key issue was whether Dura’s test was designed to reveal an impairment or information about the employee’s health. Determining that a jury could go either way on the question, the appeals court sent the case back to District Court.

Specifically, the higher court reversed, vacated, and remanded the portion of the lower court’s judgment on employees’ ADA Title I claims against Dura related to testing for legal prescriptions that had machine-operation warnings. The higher court reversed the district court’s conclusion that the drug-testing protocol was a medical exam or disability-related inquiry and vacated a related punitive damages award, with one judge dissenting (see box).

According to the appeals court, it was for a jury to determine whether the testing would reveal medical conditions or was narrowly focused enough to avoid discriminating against employees who take prescription drugs.

Under Equal Employment Opportunity Commission definitions, a “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. One of the factors bearing on this determination is whether the test is designed to reveal an impairment or information about employees’ physical or mental health.

The appeals court saidit was not clear whether Dura’s testing to find out whether employees were taking machine-operation restricted prescriptions was a medical exam.

“The urine test itself revealed only the presence of chemicals,” the appeals court held. “No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an ‘impairment’).”

Nonetheless, there was evidence of inconsistencies between Dura’s written and actual drug testing policies. The appeals court cited reports of Dura’s alleged disparate treatment of individual employees, which it said could “evince a pernicious motive.”

“For instance, one plaintiff … claims that [Dura] asked her directly about her prescription medications and fired her for not reporting them, and [Dura] allowed another plaintiff to return to work despite testing positive,” the appeals court explained.

There were also lingering questions about whether the testing amounted to a disability-related inquiry.

Weighing in Dura’s favor was how it used a third-party contractor to conduct the tests. Specifically, the appeals court explained that the test, which required positive-testing employees to disclose medications to the contractor who then relayed only machine-restricted medications to Dura, did not have to reveal information about a disability.

“[Dura’s] third-party administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same,” the appeals court explained. It noted that EEOC guidance defines a “disability-related inquiry” as a “question (or series of questions) that is likely to elicit information about a disability.”

The employees argued that the test was designed to seek information on possible weaknesses in workers and then exclude them from the workplace. But the appeals court held that a jury could conclude that Dura was trying to avoid gathering information about employees’ disabilities. Still, it noted that the testing went further than what the ADA’s drug test exemption for illegal drugs permitted.

Throughout its five-year history, the case has tested various provisions of the ADA.

In 2010, the appeals court held that only individuals with qualifying disabilities under the ADA could pursue a claim under a provision that prohibits employers from using qualification standards, employment tests, and other selection criteria that screen out individuals with disabilities.

In other words, employees in the case without disabilities could not establish that they came under the protections of that section of the law, and the appeals court held that the district court incorrectly classified their claims under that provision.

The Dissent

One appeals court judge in Bates, et al. v. Dura Automotive Systems Inc.,disagreed with the majority’s view of medical exams and disability-related inquiries.

“Some of the terminated employees provided [Dura] with doctor’s notes stating that the use of their prescription medication did not affect work performance,” Circuit Judge Julia Smith Gibbons wrote. “[Dura], however, refused to allow these employees to return to work unless they discontinued their medications regardless of whether the medications had any real likelihood of affecting their ability to perform the job safely.”

In Gibbons’ view, this tipped the scales toward a finding of discrimination because it disregarded medical advice.

Additionally, Gibbons felt that the majority took a “cramped view” of EEOC guidance on whether a test is designed to reveal an impairment of physical or mental health.

“An employer’s purpose in using a particular test must be considered in its ‘larger factual context,’” she explained. “In this case, that larger factual context includes how [Dura] used the test results.”

Gibbons also maintained that the tests had to be considered alongside Dura’s blanket-firing policy.

She questioned why the manufacturer would disregard the employees’ doctors who stated that the employees could perform their jobs safely in spite of their prescriptions.

Nancy Grover is co-Chair of the National Workers’ Compensation and Disability Conference and Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at riskletters@lrp.com.
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Column: Risk Management

Smart But Rude

By: | September 2, 2014 • 3 min read
Joanna Makomaski is a specialist in innovative enterprise risk management methods and implementation techniques. She can be reached at riskletters@lrp.com.

Can you name five things that drive you absolutely crazy when it comes to people and their smart phones? Allow me to kick, or rather, tick things off.

One, you are interviewing for a new job. It is a panel interview. You notice two of your interviewers reading their email on their smart phone in the middle of your interview.

Two, you are at a wedding at a glorious church. You see invited guests texting during the ceremony.

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Three, you and a work colleague are having a serious discussion and mid-conversation they pulled out their smart phone to respond to an e-mail.

Four, your date takes a call on your first date.

Five, you see a friend continuously checking their smart phone for messages during your dinner party.

Do these things drive you absolutely batty? Who feels like grabbing those phones and dumping them into a toilet at moments like that? How rude.

But before we cast the first stone, let’s be honest. At some point or another, we, the self-righteous have all been guilty of phubbing aka “phone snubbing” – ignoring someone in a social or work setting and focusing on your phone instead of paying attention. Phubbing is anti-social behavior and very ironic – our powerful multicommunicating social networking devices are enabling anti-social behavior.

Is phubbing becoming toxic to our community life? Breeding incivility on our business world?

At some point or another, we, the self-righteous have all been guilty of phubbing aka “phone snubbing” – ignoring someone in a social or work setting and focusing on your phone instead of paying attention.

Are we losing our ability to pay attention to people sitting right in front of us? By virtue of having to use multicommunicating devices at work, are businesses fueling the institutionalization of rudeness?

Is such incivility breeding a more serious business risk?

Jane Webster, a professor at Queen’s School of Business in Kingston, and Ann-Frances Cameron, an associate professor at business school HEC Montreal, studied the business impacts of multicommunication. Their study notes that multicommunicating is not the same as multitasking. Rather than juggling tasks, we are juggling people.

We have to be sensitive to that difference. Some find the practice insulting and people who tend to focus on one task are likely to get offended very quickly. Such discourtesy affects feelings of trust and can compromise working relationships.

Consider how off-putting it is when you are asked to repeat yourself because someone was distracted by their phones. The study further notes that it is important to know how the people you work with like to communicate and gauge what is acceptable in different corporate cultures.

Additional research from the University of Southern California’s Marshall School of Business indicates that “older professionals and those with higher incomes are far more likely to think it is inappropriate to be checking text messages or emails during meetings of any kind.”

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So the odds are that we are risking our future rise in an organization by annoying the majority of ours senior bosses and colleagues with inappropriate smartphone use in meetings. We are openly demonstrating lack of respect, attention, listening skills and lack of control when we respond to the chime of our phone like a Pavlovian dog.

Some companies are now introducing conference rooms as “Smartphone Free Zone” or have a basket or container at the entrance of the room where meeting participants are to leave their phones at the door. The very thought of parting with their phone may cause some participants to go into full body convulsions but in many ways it could be for their own good.

As Simone Weil wrote: “Attention is the rarest and purest form of generosity.”

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Sponsored Content by Riskonnect

A Dreaming Team

Chris Thorn of Southwest Airlines got creative with his risk management program. Now, the sky's the limit.
By: | September 15, 2014 • 4 min read
SponsoredContent_Riskonnect

Chris Thorn is known as one of the most creative risk managers in the business. After all, his risk management program hit the cover of Risk & Insurance® in March, 2012.

Now the senior manager, payments and risk, for Southwest Airlines is working with Riskonnect, a technology partner that he thinks can take his program to new heights.

“For us, it’s a platform that gives you so many different tools that if you can dream it, you can build it,” said Thorn.

Claims administration

Thorn ditched his legacy risk management information system in 2012 and started working with Riskonnect, initially using the platform solely for liability claims management.

But the system’s “do-it-yourself” accessibility almost immediately caught the eye of Thorn’s colleagues managing safety risk and workers’ compensation.

“They were seeking a software solution at the time and said, ‘Hey, we want to join the party,” Thorn recalls of his friends in safety and workers’ compensation.

SponsoredContent_Riskonnect“For us, it’s a platform that gives you so many different tools that if you can dream it, you can build it.”

–Chris Thorn, senior manager, payments and risk, Southwest Airlines

What was making Thorn’s colleagues so jealous was the system’s “smart question” process which allows any supervisor in the company to enter a claim, while at the same time freeing those supervisors from being claims adjusters.

The Riskonnect platform asks questions that direct the claim to the appropriate category without the supervisor having to take on the burden of performing that triage.

“They love it because all of the redundant questions are gone,” Thorn said.

The added beauty of the system, Thorn said, is that allows carriers and TPAs to work right alongside the Southwest team in claims files while maintaining rock-solid cyber security.

“This has sped up the process,” Thorn said.

“Any time you can speed up the process, the more success you’re going to have when you make offers to settle claims,” he said.

Policy management

Since that initial splash in claims management, the Riskonnect platform has gone on to become a rock star at Southwest in a number of other areas. And as Thorn suggests, the possibilities of the system are limited only by the user’s imagination.

SponsoredContent_RiskonnectWith a little creativity and help from Riskonnect as needed, a risk manager can add on system capabilities without having to go on bended knee to his own information technology department.

In the area of insurance policy management, for example, the Riskonnect platform as built by Thorn now holds data on all property values and exposures that can in turn be downloaded for use by underwriters.

Every time Southwest buys a new airplane, the enterprise platform sends out a notice to the airlines insurance broker, who in turn notifies the 16 or 17 carriers that are on the hull program.

Again, in that “anything’s possible” vein, the system has the capability of notifying the carriers, directly, a tool Thorn said he’s flirting with.

“It is capable of doing that,” he said.

“We’re testing out this functionality before we turn on it loose directly to the insurance companies.”

Carrier ratings

In alignment with the platform’s muscle in documenting, storing and reporting liability and property exposures, the system monitors and reports on insurance carrier financial strength.

If a rating agency downgrades a Southwest program carrier’s financial strength, for example, the system “pings” Thorn and his colleagues.

“Not only will we know about it, but we will also know all programs, present and past that they participated on, what the open reserves are for those policy years and policies,” Thorn said.

“That gives us even more comfort that we have good, solid financial backing of the insurance policies that are protecting us,” Thorn said.

Accounting interface

Like many of us, Chris Thorn didn’t set out to work in risk management and insurance. Thorn is a Certified Public Accountant, and it’s that background that allows him to take creative advantage of the Riskonnect platform’s malleability in yet another way.

With the help of the Riskonnect customer service team, Thorn added a function to the platform that allows him to calculate the cost of insurance policies on a monthly basis, enter them into a general ledger and send them over to his colleagues in accounting.

SponsoredContent_Riskonnect

“It’s very robust on handling financial information, date information, or anything with that much granularity,” Thorn said.

The sky is the limit

Thorn and Southwest are only two years into their relationship with Riskonnect and there are a number of places Thorn thinks the platform can take him that have yet to be explored, but certainly will be.

“It’s basically a repository of anything that’s risk-related, it continues to grow,” Thorn said.

SponsoredContent_Riskonnect“This has sped up the process. Any time you can speed up the process, the more success you’re going to have when you make offers to settle claims.”
–Chris Thorn, senior manager, payments and risk, Southwest Airlines

Not only have Southwest’s safety and workers’ compensation managers joined Thorn in his work with Riskonnect, business continuity has come knocking as well.

Thorn met in July with members of Southwest Airline’s business continuity team, which has a whole host of concerns, ranging from pandemics to cyber-attacks that it needs help in documenting the exposures and resiliency options for.

That Enterprise Risk Management approach will in the future also involve the system’s capability to provide risk alerts, telling Thorn and his team for example, that a hurricane or fast moving wildfire is threatening one of the company’s facilities.

Supply chain resiliency and managing certificates of insurance for foreign vendors are other areas where Thorn and his team plan to put the Riskonnect platform to good use.

“That’s all stuff that’s being worked on by us,” Thorn said.

“They’ve given us the tools, but we’re trying to develop how we’re going to use it,” he said.

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Riskonnect. The editorial staff of Risk & Insurance had no role in its preparation.


Riskonnect is the provider of a premier, enterprise-class technology platform for the risk management industry.
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