Labor & Employment Law Daily Painting company faces trial after firing recovering opioid addict who used prescribed methadone
Tuesday, January 21, 2020

Painting company faces trial after firing recovering opioid addict who used prescribed methadone

By Marjorie Johnson, J.D.

Pretext was suggested by the employer’s failure to follow its own policy when it discharged the painter for purportedly failing to obtain his doctor’s verification, as well as by the decisionmaker’s comment that “we don’t normally hire people on methadone.”

A jury will decide whether a certified industrial painter who used prescribed methadone to treat his opioid addiction was fired because he was unable to obtain a verification form from his doctor or if the decisionmaker’s purported reliance on company policy and concerns regarding employee safety were a pretext to mask her discriminatory animus toward recovering drug addicts who use methadone. Denying the employer’s motion for summary judgment, a federal court in Texas also found that the EEOC presented sufficient evidence suggesting that the painter had a record of a disability and was qualified to perform the safety-sensitive job despite his failure to obtain his doctor’s authorization (EEOC v. Steel Painters LLC, January 14, 2020, Crone, M.).

Recovered opioid addict. In 2012, the certified industrial painter developed an addiction to opioid pain medication after being treated for an on-the-job injury. He enrolled in a medically supervised drug rehabilitation program, which resulted in an ongoing prescription for methadone to treat his addiction. As a recovered addict, he began working again in 2013.

Disclosed methadone prescription. The employer conditionally hired him in March 2016, at which time he completed a medical history form disclosing that he took prescription methadone. The company contacted him about a job a few months later, and on September 19 he completed another medical history form and underwent a drug screening. He started working the next day.

Allowed to work, given verification form. On September 26, the drug screening facility reported that the employee tested positive for methadone and he was removed from the jobsite. He provided verification of his prescription to the testing company and on September 27 it issued a final report indicating a “negative” result. That same morning, the safety director instructed the employee to have his doctor fill out a prescription verification form pursuant to its “OTC/Rx Safety Sensitive Verification Policy (SOP-57).” The form required the physician to attest that he could safely perform safety-sensitive duties while taking the prescription medication.

Terminated. When he visited the clinic on September 28, his doctor refused the form based on the clinic’s privacy policy but gave him a letter that verified his prescription and provided a phone number to call for additional information. The employee informed the administrative manager the next day and asked to be sent to the company doctor. She refused, telling him that its doctors would not clear him since “we don’t normally hire people on methadone,” and then fired him.

Record of disability. The EEOC sufficiently established that the employee had a record of a disability based on his testimony describing in detail the disabling mental and physical effects that he suffered while using opioids and during withdrawal. While he admitted that his use of methadone ameliorated the effects of his addiction, he claimed that his continued use of methadone in conjunction with counseling was necessary to avoid withdrawal symptoms and prevent a relapse.

Qualified to perform job safely? A triable issue also existed as to whether his failure to submit the verification form deemed him unqualified to perform his safety sensitive position. The EEOC presented evidence that he had worked as an industrial painter while taking methadone since 2013 and had never been disciplined or discharged because of a methadone-related accident. He also testified that pursuant to his doctor’s recommendation, he took methadone at night so that any side effects would dissipate by the time he began work in the morning.

Furthermore, despite constructive knowledge of his prescription, the employer cleared him to work on September 20, 21, 23, and 24. And after it obtained actual knowledge on December 26, it still cleared him to work the next day, which clearly demonstrated that it deemed him qualified to perform his job safely. The company also rejected his request that its own doctors determine whether he posed a direct threat and did not request additional information from the clinic. Consequently, a reasonable jury could conclude that he would not pose a risk to the health and safety of others by working as an industrial painter while taking prescription methadone.

Inference of bias. Statements made by the administrative manager could also allow a jury to infer discrimination, including her statement before terminating him that “we don’t normally hire people on methadone.” She also acknowledged in an email that she was aware that methadone is used to treat a disability covered by the ADA, but that the “we spoke with our attorneys about that and were advised that if he worked in an office setting that would be one thing but working in a refinery, safety sensitive work, it is a different situation.”

Pretext. Because the EEOC did not assert a disparate impact claim, the court rejected its contention that SOP-57 was an unlawful qualification standard and not a “nondiscriminatory” justification. However, there was ample evidence suggesting that the company’s reliance on the policy was pretextual.

Failure to follow policy. Though the employer promulgated the policy in January 2016, it didn’t apply it until nine months later, after it received the results of the employee’s drug screening. It also didn’t appear to have complied with the policy since it did not remove him from service “immediately” after discovering that he was taking prescription medication without completing the verification form. It instead allowed him to return to work the next day. Additionally, his request to be evaluated by a company doctor appeared consistent with the policy.

Decisionmaker’s comments. Various statements allegedly made by the administrative manager suggested that she held negative views of recovering drug addicts who used methadone and that she was “sufficiently familiar with federal employment law to discriminate without leading to repercussions.” This included an email to the owner in December 2013 in which she discussed ways to get around hiring a prospective hire who had disclosed that he was prescribed methadone, as well as her “we don’t normally hire people on methadone” comment. She also on several occasions “feigned ignorance of the purpose for which methadone is prescribed.”

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