Employment Law Daily By refusing to consider non-opiate alternatives for pain, employee doomed his ADA claims
Friday, March 2, 2018

By refusing to consider non-opiate alternatives for pain, employee doomed his ADA claims

By Lorene D. Park, J.D.

Given that an employee worked around dangerous equipment and admittedly took both Vicodin and morphine at work, his employer did not violate the ADA by seeking further information and asking him to consult with his doctor on non-opiate alternatives for pain. Granting summary judgment for the employer, the federal court in Ohio also held that the employee’s termination for refusing to consider alternatives did not violate the ADA because he was not cooperating in the interactive process as required (Sloan v. Repacorp, Inc., February 27, 2018, Newman, M.).

The employee worked as a production manager for Repacorp, which manufactures labels for other companies and uses heavy machinery for the printing of such labels. During 10-20 percent of his workday, the employee worked with and around dangerous heavy machinery, including presses and rewinders. Because of the danger, the employer maintained an employee handbook requiring that all employees notify management if they are taking nonprescription or prescription medication. The employee understood that he could be terminated for testing positive.

Pain meds while working. During his employment, the employee took prescription medication for back and neck pain. In June or July 2013, he started taking a prescription of 30 mg of time-released morphine and 15 mg of instant release morphine twice a day. It was undisputed he did not tell his supervisors until the day of his termination. In addition, he admitted that on at least one occasion, he abused his prescription morphine at work. In November 2013, he told a coworker he had just cut one of his morphine time release pills to get it into his system faster. He later admitted that “cutting” the pill was not in accord with his prescription and was viewed as an abuse. He also admitted that he took non-prescribed Vicodin, an opiate pain medication, at least twice at work. In 2013, he received a Vicodin pill from a coworker during work hours and in February 2014, he told a coworker by email that he had taken one of his mother’s Vicodin pills.

Positive drug test. According to the employer, another worker allegedly told a supervisor on February 10 that the employee had asked him for Vicodin a few weeks earlier. The supervisor informed the company president, who removed the employee from the manufacturing floor and sent him for a drug test that same day. The employee submitted voluntarily to the test, which was positive for an opiate in Vicodin. He was not immediately terminated though, and when asked why, the company president testified “I’m too damn nice. That’s the reason. I should have said no, but I was trying to keep, let him keep his job….”

On February 17, the employee was put on leave and referred to an employee assistance program. A counselor requested information from his doctor, including a list of medications and whether he could work as a production manager given his condition or whether there were limitations. According to the employee, on February 20 his physician faxed a document stating he could work full time without restrictions. (The employer claimed it didn’t receive this information until March 19, nearly three weeks after his employment ended.).

Employee “chose drugs over his job.” Meanwhile, the employee stayed in contact with the company president until his termination on February 28, the day the president first learned he was taking morphine. The president testified that he was already concerned about the Vicodin due to the dangerous work environment, and was even more concerned after learning about the morphine. He believed he could not trust the employee to not do it again and put the company at risk for “huge liability.” He asked the employee to consult his doctor about alternatives to opiate pain medications and the employee tried to contact his doctor. He was unable to reach the doctor and decided on his own to “stay on my medication” and told the president he “wouldn’t stop taking it.” From the president’s perspective, the employee “chose drugs over his job.”

ADA suit. Filing suit under the ADA, the employee claimed he was fired due to his disability, “degenerative disc disease and arthritis,” which required him to take prescription medication. He also claimed he requested a reasonable accommodation.

No improper medical inquiry. Granting the employer’s motion for summary judgment, the court first noted that the employee offered no argument opposing the company’s contention that it made proper medical inquiries when it requested information from his physician and when the president asked the employee if his pain could be managed with medication other than opiates. Accordingly, those did not violate the ADA. Even absent the employee’s concession, the court would still find that the employer had reason to believe he posed a danger and could not perform his job’s essential functions, which required using dangerous equipment, because his drug test was positive and he admitted taking Vicodin and morphine at work. The court also found the inquiry into whether non-opiate drugs could reasonably accommodate his disability was proper because the employer made the inquiry in response to an accommodation request.

Employee didn’t cooperate with interactive process. While the employee argued that the employer discriminated by firing him without concluding he posed a “direct threat” while under the influence of morphine, the court said he missed the point. His employment did not end based on a direct threat analysis but because he impeded the employer’s ability to investigate the extent of his disability and determine whether a non-opiate medication could reasonably accommodate him. Because he failed to cooperate with or participate in the interactive process, summary judgment was warranted on both his discrimination and retaliation claims under the ADA.

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