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<img class="alignright size-medium wp-image-4576" src="https://healthlawupdate.bakerhostetlerblogs.com/wp-content/uploads/sites/19/2016/10/discrimination-iStock_19774286_XXLARGE-300x200.jpg" alt="Definition &quot;discrimination&quot;" width="300" height="200" />A nurse employed by a major medical center was suspected of illegally diverting medications. When confronted by her employer with evidence of suspicious transactions recorded by the provider’s medication monitoring systems, the nurse denied diverting medications but could not explain the suspicious transactions (“I’m not an IT person. I’m a nurse.”). Following termination of her employment, the nurse filed suit against her former employer under the Tennessee Disabilities Act (TDA), claiming she had lost her job solely because the employer “perceived her to have the disability of drug addiction.”

The employer argued that “it did not fire her because she was considered a drug addict, but because it thought she was stealing medications.” The Tennessee Court of Appeals in <em><a href="http://cases.justia.com/tennessee/court-of-appeals/2017-e2016-00375-coa-r3-cv.pdf?ts=1488482070">Demastus v. University Health System</a></em> upheld the trial court’s dismissal of the nurse’s claim on two grounds. First, the court held that the TDA specifically excludes the “current illegal use of or addiction to a controlled substance” as a disability. Second, the court found that the nurse had failed to show that her termination for diversion was a pretext for illegal discrimination. The court noted, however, that an employer is prohibited from terminating an employee for a disability it perceives the employee suffers from, without regard to whether the employee actually suffers from such disability.

As the case shows, to avoid discrimination claims, care is advised when taking action against an employee suspected of diverting medications.

You Can’t Fire Me for Drug Diversion If I Am Personally Consuming the Drugs