A staff person had returned to our client’s place of business to retrieve an item from his locker. While that staff person, who is classified as an Independent Contractor, was not performing services at the time of his return, he was available to do so and may have been booked with a client. However, upon his return, three other staff members detected and confirmed the noticeable odor of marijuana enveloping his presence.
At a manager’s meeting held the following week, the staff person was afforded an opportunity to explain himself regarding the odor of marijuana on his person. The staff person denied ever having smoked marijuana and articulated that he had been inadvertently doused with a mixture of air fresheners from a valet where his automobile was being detailed prior to returning to the client’s place of business. Although his explanation was specious, the staff person was admonished and allowed to continue providing his services.
A month after the original incident, the previously admonished staff person showed up to the client’s place of business with the noticeable odor of marijuana and cologne enveloping his presence. However, on this occasion, he proceeded to provide services to a client that was given to him by the client. The very next day this staff person was advised that his services were no longer required and was told to vacate the premises after collecting his belongings. Upon exiting the salon, the former staff person showed our client his State of California Medical Marijuana Identification Card, because he had previously told the client that he suffered from Attention Deficit Disorder.
The client was concerned that she might have been obligated to accommodate the staff member’s disability regardless of his Independent Contractor classification.
The below represents a Human Resources Perspective Analysis (HRPA) of the fact pattern presented by a client. Consequently, the following should not be construed as legal advice or legal opinion.
- Independent Contractors have very little, if any, legal protections in the workplace, because they are not employees, but rather are “[a] person doing work who is in business for himself/herself and not dependent on a particular employer to engage in this line of work” (Walsh, 2012, p. 728).
- Although Attention Deficit Disorder is a qualified cognitive disorder under the Americans with Disabilities Amendments Act (ADAA) its protections only extends to those staff members who are classified as employees, and only for those companies who have 15 or more employees (Walsh, 2012). Furthermore, employees who are current users of illegal drugs, regardless of whether they suffer from drug addiction, are not considered disabled under the Americans with Disabilities Act (Walsh, 2012). Consequently, the situation suggests that the client is not likely to run afoul of the ADA or the ADAAA as it relates to accommodation, because the staff person was an Independent Contractor, not an employee.
- The client made the right decision to terminate the services of the Independent Contractor for being under the deleterious effects of an illegal drug while providing services, because the owner had foreseeability, which “is whether a ‘reasonable person’ of average intelligence would be able to foresee that [allowing] an unfit person for this particular position would render injury or harm to others” (Walsh, 2012, p. 136). Consequently, the owner’s foreseeability may have imputed negligence, if that staff person rendered injury or harm to others, regardless of his status as a Independent Contractor.
Walsh, D. (2012). Employment Law For Human Resource Practice (4th ed.). United States: South-Western College Publishing.