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Intoxicated worker awarded Workers’ Comp

Typically workers who are intoxicated at the time of a work-related injury are not awarded Workers’ Compensation benefits. However, this was not the case in Villa v. City of Las Cruces, a noteworthy work comp case out of New Mexico.

Villa, a city worker who was driving and operating a garbage truck prior to the accident, had a blood-alcohol level of 0.12, well above the state legal driving limit. While he was climbing on the side of the truck in an attempt to free a trash bin that was lodged in a garbage truck hopper, he lost his balance and fell on the pavement, resulting in serious injuries.

In assessing the man's claim, the Workers' Compensation judge noted that although Villa had been inebriated at the time of the accident, his supervisor and co-workers did not notice any lessened ability to perform the essential functions of the job. The judge gave him a 10% penalty for intoxication and awarded him the remaining 90% of Workers' Compensation benefits.

The city appealed the decision. However, a New Mexico Court of Appeal upheld the ruling, stating that under state law, intoxication must be the only factor in a work injury for an employee to be denied compensation.

The law allows an employer to make sure an employee is “fit for duty,” meaning the employee will cause no harm to themselves or anybody else and be as productive as the other employees. An employer has the right to request a fit-for-duty exam pre-hire and also has the right to request one of existing employees if they have a reasonable suspicion that the employee may not be fit for duty. A clear drug and alcohol policy can help mitigate the situation.  It’s advisable to rely upon professional legal advice.

Fitness for Duty Exams and ADA

The Americans with Disabilities Act (ADA) allows an employer to require an employee to undergo a fitness-for-duty examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held that an employer also can require an employee to undergo such an exam as a “pre-emptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work. It cautioned, however, that the standard for establishing the validity of such a requirement is quite high – the employee’s behavior cannot be “merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”

According to court documents in Brownfield v. City of Yakima, Oscar J. Brownfield began working as a police officer for the Yakima Police Department in November 1999. About a year later, he suffered a head injury in an off-duty car accident. He recovered from the injury but had “reduced self-awareness” and returned to duty in July 2001. Although he received positive performance evaluations and several commendations over the next three years, in 2004 Brownfield got into a heated discussion with his community partner, as well as “disruptive” arguments with other officers and his estranged wife. Based on those four incidents, Brownfield was placed on administrative leave and forced to undergo a FFDE.

The diagnosis was mood disorder that manifested itself in “poor judgment, emotional volatility and irritability,” that was related to Brownfield’s 2000 head injury. The physician determined that Brownfield was unfit for police duty and was permanently disabled by the condition.

Brownfield subsequently got a second opinion that found he was unfit for duty but his condition might improve with treatment. In December 2006, the physician reported that Brownfield was improving and could return to duty, but at an unspecified date. The YPD scheduled another FFDE, this time with a third physician. (Brownfield refused to return to the first). Although Brownfield attended an initial session, he refused to return to complete the evaluation, and his employment ultimately was terminated.

Brownfield sued in federal court, alleging, among other claims, that the YPD had violated the ADA by requiring him to submit to the FFDE. The district court granted summary judgment in favor of the city, and Brownfield appealed. The 9th Circuit upheld the lower court’s dismissal.


It is the employer’s responsibility to demonstrate a job-related reason for a FFDE. Accurate and complete documentation of the incidents that form the basis for requiring a FFDE are key to avoid or defend claims.

Getting the Accommodation Right

(from HR That Works!)

Complainant Eleanor Reed was a customer service representative for Avis Budget Group (Avis) at its San Francisco Airport location. In June 2006, she requested a reasonable accommodation of a six-hour shift for her mental disability (post-traumatic stress disorder). She previously had been granted the accommodation without any problems, and had succeeded in performing her essential functions with the accommodation. Avis decided to place her on unpaid leave and thereafter requested medical documentation. Reed provided the documentation requested, including the diagnosis, the reasons for the accommodation, and why it would allow her to perform the essential functions of the job. However, she refused to agree to a blanket release of her medical records, including several years of psychiatric records that detailed decades of sexual and other physical and mental domestic abuse, or to provide unfettered access to her treating psychiatrist.

Avis decided that the doctor’s documentation was inadequate, and requested that she provide the full medical records release and access to her doctor or submit to the company’s physician for evaluation. Avis did not engage with Reed about the purported inadequacies or give her an opportunity to augment the doctor’s information to support the request for accommodation. Approximately five months after placing Reed on unpaid leave, Avis finally obtained an independent medical opinion that agreed with the opinion of her doctor. Even though it provided no further information as to the reason for the accommodation, Avis finally accepted the opinion and agreed to grant an accommodation. However, it looked at its “seasonal” need and placed Reed on a severely reduced work schedule that removed her from eligibility to bump another employee with less seniority when Avis laid off four employees, including Reed, the following month.

The CA Fair Employment and Housing Commission ruled in favor of the Department and against Avis for unlawful inquiries about the employee’s disabilities, failure to engage in the interactive process, denial of reasonable accommodation, and failure to take all reasonable steps necessary to prevent discrimination. The Commission ordered an award of $89,863.70 ($14,863.70 in back pay and $50,000 in emotional distress damages to Reed; and $25,000 in an administrative fine to the General Fund), plus affirmative relief of postings and training for management personnel on reasonable accommodation.


  1. Limit the medical information you request or receive to that which relates directly to the accommodation issue. Asking for anything more only invites problems.
  2. Never, ever, give up on the accommodation dialogue. Whoever quits first loses.
  3. Make sure not to “penalize” someone who has requested an accommodation.Realize that there is often “something else” going on with a person that’s none of your business! Focus on their productivity and disability, not the cause of their disability.

EEOC charges rise, retaliation leads way

Retaliation charges became the most common charge filed with the U.S. Equal Employment Opportunity Commission (EEOC) in fiscal year 2010, surpassing race discrimination, the agency recently announced.

Many different types of workplace interaction can be viewed as retaliation, especially since the Supreme Court’s decision in Burlington Northern v. White, 548 U.S. 53 (2006), broadened the types of actions by an employer that could be viewed as actionable retaliation.

Prudent employers will think about the possibility of retaliation claims at all times and document the bona fide reasons for taking these actions.

While retaliation became the most common, charges under all of the laws the EEOC enforces rose in 2010, the agency noted:

In addition, Genetic Information Nondiscrimination Act (GINA) charges totaled 201 in 2010, the first year GINA charges were filed with the agency.