Handling Prescription and Illegal Drug Use in the Workplace

The costs of an employee lawsuit can devastate both sides of a case. At her practice, former litigator and current restaurant employment lawyer Lexington Wolff advises industry employers on how to avoid such lawsuits in the first place.

In the latest episode for the new podcast Restaurant Masters, guest host Wolff discusses how to handle employee use of illegal and prescription drugs at your restaurant within the bounds of the law.

Drug use has always been a problem in the restaurant industry, but the issue has become more legally fraught for employers and employees alike in recent years.

“A lot of employers are under the misconception that they are entitled to a drug-free workplace, and that they have the power to influence that by any means,” says Wolff. “That is not exactly accurate. The law is really much more nuanced.”

In general, employers can test for illegal drug use at any time, and discipline employees who refuse to take a test. However, prescription drug employment laws are a bit less clear.

“If you’re going to test for prescription drug use, it’s very likely you’re going to learn about a medical condition or a protected disability that you otherwise had no reason to know about,” notes Wolff. And despite what some employers may think, “the less you know about a person’s protected status, the better.”

If you fire an employee or do not hire a candidate for a role after such an extensive test, you are opening yourself up to the possibility of a lawsuit. A candidate could effectively argue in court that you did not hire them because of their disability.

Listen to the episode above to learn more about developing a company-wide drug policy and the ins and outs of current marijuana laws.

Produced by:

Darisha Beresford

Darisha Beresford

Production Manager / Sr. Producer

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Restaurant Masters on Handling Sexual Harassment Complaints and Disability Discrimination

Employee lawsuits can be costly for both sides of a case. Former litigator and current restaurant employment lawyer Lexington Wolff uses her practice to advise industry owners who wish to avoid such lawsuits in the first place.

For the two launch episodes of the new podcast Restaurant Masters, guest host Wolff discusses the right way to approach sexual harassment complaints and disability discrimination.

With the rise of the Me Too movement, sexual harassment has become a more public concern for restaurant owners and industry operators. If a complaint is not handled effectively, a restaurant’s reputation can be irretrievably damaged overnight.

As a litigator, Wolff watched employers spend an “unbelievable amount” of time, money, and resources to defend themselves in court. And the individual cases were, almost always, completely preventable.

“The way you address this issue has an enormous impact on your workplace culture,” says Wolff. “The legal standard for sexual harassment is that employers have to stop conduct that they either know or should have known was happening in the workplace.”

Restaurant owners need to have a plan and protocol in place for complaints—including alternate channels of reporting. And complaints need to be taken seriously and fully investigated.

“There’s no such thing as an allegation that’s too small or too insignificant,” adds Wolff. “You want to make sure you do absolutely everything you can to show your employees that you care.”

Listen to the podcast above to learn more about cultivating a healthy workplace culture and the importance of decisive action after conducting a sexual harassment investigation.

Many employers today still only think of disabilities in the context of their common physical manifestations—deafness, blindness, or the need for a wheelchair. But mental disabilities are also protected under the Americans with Disabilities Act (ADA), and restaurant owners need to be careful in ensuring that they are doing all that they are legally required to do for their employees and potential hires.

“There’s no definitive list of disabilities under the law,” says Wolff. “And mental conditions are equally protected.”

According to Wolff, 8.5 percent of charges in 2018 disability discrimination cases were related to anxiety disorder, and 7 percent were related to depression.

Wolff encourages her clients to remember to keep the conversation open and supportive when approached by an employee asking for a disability accommodation. “Handle it on a case by case basis,” notes Wolff, “and work on it together with [your employee] to determine a solution.”

Check out the podcast above to get a deep dive into the rules for discussing a disability with a potential hire, and to better understand the concept of undue hardship in regards to requested disability accommodations.

Produced by:

Darisha Beresford

Darisha Beresford

Production Manager / Sr. Producer

VIEW BIO

Passing Notes: The Cheesecake Factory's Road to a Disability Discrimination Lawsuit

Passing Notes: The Cheesecake Factory's Road to a Disability Discrimination Lawsuit

In 2016, The Cheesecake Factory was sued by the Equal Employment Opportunity Commission (EEOC) for failing to provide an effective accommodation under the Americans with Disabilities Act (ADA). According to the lawsuit, the company denied Oleg Ivanov’s repeated requests for orientation training with either closed-captioned video or an interpreter and instead relied on passing written notes to communicate with him at his interview, orientation, and meetings.  

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