Narcotics Diversion: Court Turns Down Nurse’s Disability Discrimination Lawsuit.
Legal Eagle Eye Newsletter for the Nursing Profession
April 2017
An employee can sue for disability discrimination if the employer takes adverse action based on a disability the employee has. An employee can sue for disability discrimination if the employer takes adverse action on the basis of a disability the employer perceives the employee to have which the employee does not actually have. Either way, the first question in any disability discrimination case is whether the condition the employee has or is perceived to have fits the legal definition of a disability.
The legal definition of disability does not include current illegal use of drugs or current addiction or dependence on drugs, alcohol or controlled substances. On the other hand, a successfully rehabilitated drug abuser or addict is a disabled person, unlike a person in the active phase of addition or dependency. This nurse’s employer also had convincing proof that she was diverting narcotics, based on discrepancies between the narcotics that were dispensed to her and what she actually gave her patients.
COURT OF APPEALS OF TENNESSEE March 2, 2017Her supervisors began to have suspicions about the nurse because of a tardiness problem. Although the nurse blamed her problem on her diagnosis of Attention Deficit Hyperactivity Disorder she made the effort and resolved her tardiness problem to her managers’ satisfaction. Nevertheless the hospital’s compliance officer decided to audit the nurse’s narcotics by comparing the electronic records of the narcotics dispensed to the nurse with the medications documented in her patients’ charts as having been given. Discrepancies were discovered which the nurse could not explain. The nurse was terminated.
The nurse sued for disability discrimination. She claimed she was perceived by her supervisors and others in hospital management as being addicted to narcotics which she claimed is a disability. The Court of Appeals of Tennessee dismissed the nurse’s lawsuit. If an employee is currently abusing drugs, alcohol or controlled substances or is merely perceived by his or her supervisors as having a current ongoing problem, the employee is not considered disabled for purposes of disability discrimination law.
On the other hand, being successfully rehabilitated from drug or alcohol abuse or being so perceived, while not currently abusing, is a recognized disability. To be considered successfully rehabilitated with rights as a disabled employee the courts have not specified a minimum length of clean and sober time or the measures the employee must have undertaken to attain and maintain sobriety. Nevertheless no one can claim that being an active narcotic or other substance abuser or being so perceived is a legally protected disability. The Court also pointed out the hospital had strong evidence that the nurse diverted narcotics, whether or not she was disabled. The nurse could not explain the discrepancies the hospital’s investigation turned up.
Demastus v. Hospital, 2017 WL 829815 (Tenn. App., March 2, 2017).More references from nursinglaw.com
http://www.nursinglaw.com/opioid-dependence-nurse-disability-discrimination.htm
http://www.nursinglaw.com/narcotics-discrepancies-nurse.htm
http://www.nursinglaw.com/narcotics-diversion-defamation.htm
http://www.nursinglaw.com/diversion-narcotics.htm
http://www.nursinglaw.com/diversion-narcotics-nurse-disqualified.htm