named atripla for the purpose of slowing that down that drug does have a side effect it's a powerful drug and one of those side effects is that when one takes a urine drug screen it can show a false positive for marijuana that's what happened in this case in march of two thousand and eleven his drug screen did come back positive for marijuana and he did four things that are factually relevant to this case within two hours he brought in a medical note from his doctor's office saying that he has a prescription medication that can cause a false positive he put that in the hand of human resources and he specifically told human resources i have a medical impairment but here that  he was claiming to have a disability they never told him he never told them to to ensure that your i don't want one legal one factual legally under the new law disability is defined as impairment  under section c which is the third prong i've had a number of a b a cases that i think history judges find this confusing that the third prong retains the name regarded as but it's actually both regarded as and impairment and actual impair is when you're on ask me how do they know he has a disability the correct legal question is did they know he had a medical i mean here have all kinds of will you can and so the way the drafters wrote the new law is to say that an impairment is the definition of disability unless the defendant proves that it is both transitory and minor and that it would fall of them are this because then did the defendant in some instances would have to launch an investigation into the medical condition of the of the employee in other words  with the employer about that impairment and the employer says take it up with our medical review officer because they analyze this and the employee interacting in good faith much like a reasonable accommodation interaction attempts to do that and the medical review officer will not speak to him and in fact says that the employee declined to speak on number happened here that problem where we are case is similar to your clay's problem at least an employee needs to make it relatively clear to the or you're that he's claiming or she's claiming a disability not plan thing that would be regarded as a disability and that never happened in this case but it actually did your honor the note was given to human resources that says and impairment and human resources at that point said we won't interact with that take it to the medical review officer and so my client tried to do that because that is the avenue where those confidential communications like you're talking about would occur about i have  here's the nature of my disability here's what i take those confidential sort of things that that's the way the system is set up but my client was shut out from those conversations no fault of his own and so in this case he does what the employer is telling him to do and frankly i think he did it correctly people that have hiv are are rightly going to be concerned about how to communicate that and so he goes to human resources with  false positive and human resources that stop go further in your interactive process with the medical review officer who knows that the human resources manager tells him to do that in fact a human resources officer says within seventy two hours you will have that conversation as mr bailey waits medical doctor doesn't so he makes the call himself tries to get through the medical review officer cannot get through and two days later he is let go now the medical review officer apparently called the employer and said you never tell us anything about a prescription medication and the employer said oh wait a minute he's got two notes here from a and he said he takes a prescription medication that can cause a false positive and my client said i have a medical impairment which caused this impairment being the key words under the new act at that point impairment that is not transitory and minor has a disability under sex shouldn't see yes sure yes that is the new law if you're not seeking a reasonable accommodation then this law protects people with yes you would know you could and would be a disability for purposes of this that you conceivably could be if it were not transitory and minor and the focus would move to causation but in this case there's no question th every four years to have to do anything else but why is it they didn't perceive it because the employer and its him or fail to interact with him he did everything he could to get this information to the m r o when he got a disclosing the diagnosis and so they're probably has attempted to do to do that and when the more information was needed he intended to give that through the m r o process because the letter said if you need more information reasonable attempt to interact about this particular way into a very stigmatic condition like like a chevy it's it's it's it's difficult to know how to communicate about that and the effort to say into letters please call me and then to interact with the m r o i think is probably wouldn't employee should do you review officer didn't know he had a job fail a drug test when his main argument i'm sorry his counsel's main argument which you need to respond to is because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life back to that and that is exactly my point your honor it's not about as i shall be because it doesn't matter how severe or not severe the impairment is but i have to know that there's an impairment the notice that so let received assuming that they saw them and understood them say he's on a prescription medication there's prescription medications for all kinds of things there are disabilities you have a sinus infection that's three or four days long with the word impairment he says and that's great is what is used in  statute yes i agree with that and again i don't think that there's any evidence at all that select knew that he had any kind of impairment i mean again you know like you are pointed out in implants argument there's a protocol on drug testing and there's no there's no argument that they're not allowed to drug test or that the drug test is discriminatory and heard anything like that there is a protocol drug testing you fail the drug test if you have a prescription that you think interfered with a drug test and these folks were told that both that testing side and he was told that you know these these notes employers are not in a position to understand those moves to to know to make a determination whether these notes are accurate or not so they send to the medical review officer and the truth is in this case mr bailey admitted that he talked to somebody at the medical review office now it wasn't somebody that he thought he should tell that he had a child he too he either didn't remember or didn't know what prescription he was on and so when the medical review office communicates back to select staffing to run in this case well he didn't tell us it interact with us he didn't tell us what he was on and again there's no way for those folks to read any minds and say ok there's you know there is something here that we need to look into further more again he's not asked for an accommodation and now if there is if he the asked for an accommodation i think maybe there's an argument that there needs to be a medical inquiry and in the individual ised assessment or something like that the accommodation that's reasonable is to work through the medical review officer who has the expertise to understand whether whatever perspiration he's on actually does cause a false positive on the  should interpret it the word impairment seems to be the word that needs to be construed interpreted and you could infer from what happened here individual meets the requirement of being regarded as having it in ehrman individuals to have or says that he or she has been said and then action prohibited under this act because of an actual or perceived physical or mental in other words it's same's if you've got an impairment you've created a presumption let's just say for a moment you could infer that he had some gout or you don't know what but the doctor says what he says and he says you know that impairment or and you know it seems like that creates a presumption that you've got a disability and that the  or what i think if it's interpreted that way the problem is it completely guts any opportunity for an employer especially employer for example like sargents where mr bailey was assigned that has a warehouse where people are driving forklifts where they want to do some of this drug testing so that they can keep the workplace site i think it guts their ability to do that because anybody can come up and say congress meant to make that happen in every case where somebody claims hey i might be impaired now in this case again what was what is the defendant required to do in this situation and i think the answer is exactly what they did there is a protocol there's a drug testing protocol we have a medical review officer in gauge with that person tell him what you've got to tell  opportunity to to communicate with somebody at the medical review office it was just not somebody that he thought he ought to tell he said he thought it was a secretary or somebody somebody just basically answered the phone but they asked him what his prescription wants and he couldn't remember what it was he could you know so he had the opportunity to engage with this if he tells anybody hey i should be if he tells if he tells the medical review office has a i've got  persecution for this they take that into consideration when they interpret the protest not a problem with that of course is that the tests confirm positive and so there really wasn't a false positive it really was marijuana  t again i think the problem with it if we construe the statute that way and if we construe it the way that that the plaintiff has encouraged us to do amended it did not change the fact that you still not prove causation you got proof somewhere that the disability or impairment in this case prove it costs the adverse action and there's in his doctor see his doctor wrote a note that he was on a bed mr bailey was on a prescription medication that could cause a false positive that's all  and that's a big leap from he's on a prescription medication that caused false positive to he's  to disclose his his prescription urge to give his notice the ok just to clarify the record in terms of what they have or your movie and when did they know it he feels a drug this the same day time he comes back with a new not and mr anal says he you know here's your original no i can't take your notes i'm not qualified to interpret these meds we have a medical review officer engage with them and  was a couple days later after that when when the when there was no response from medical review officer when the medical review office contacted said we're not you know he's we've not heard from him that's when ultimately it was terminated well subsequently information but that he failed a drug test that's that's what they had to base their decision and that's really in again to be gives a reasonable expectation for employers that's good to do more again means that we're going to have every time that somebody has a drug test and they say well you know i didn't do it or i've got an impairment or i have a cold that day or something like that then then the employer is going to have to in every single case do some sort of if we accept what's what's being encouraged here in every case we're going to have to do that and so we've got one hundred people that we drug test and fifty of them say you know i'm on medication we're going to have to do more not about the stereotypes and the fears about h p v because they didn't know about the new failed drug test that's why thank you for your  like to make a distinction between coverage and causation the first prong disability coverage is simply shown by having an impairment hit the is an impairment that's different as to causation what they actually knew what they knew or should have known and in this case they've got to know and when he brings the second one and march fifteenth the way he seeks to communicate with human resources march fifteenth he brings the second note he's terminated march seventeenth when he brings that second note on march fifteenth the one that says mr bailey is a patient my clinic he takes  a prescribed medication for an impairment if you have any more questions call me because this can cause a false positive on a urine drug screen that's what it says when he brings that second out and put it in the hand of human resources they send him to their what the impairment is i mean at least that's the way it seems to be worded i think that actually i think that's right and you have to have some history of the problem with a t a i that resulted in the change in ninety nine percent of the time according to the american bar association plaintiffs  not win under the eighty eight so they purposefully made coverage more lenient to shift it to causation so that the employer and the employee would interact and so if you reach causation and you remand it that's where the jury needs to say hey who messed up in this interaction the guy's bringing in two notes he's put in the human resource managers hand and the m r i almost talk to him and then fills out a sheet all sleaze saying that he would not speak to them and so that's the issue  ultimately the employee he's impairment must be assessed on an objective standard as to not be transitory or minor h l v is neither of those in in this case it would not be appropriate to separate the company from the medical review officer because they employ the medical review officer and the law says that a company cannot contract away its liability to other third party doctors  so when you look at the interactive process the medical review officer and the company with whom mr bailey is trying to interact are one in the same you are thank you thank you very much