Employment Law Daily Post-discharge offer to produce Adderall script for employee’s ADD might be timely accommodation request
Tuesday, August 22, 2017

Post-discharge offer to produce Adderall script for employee’s ADD might be timely accommodation request

By Kathleen Kapusta, J.D.

An employer may have refused to provide a reasonable accommodation timely requested by an employee—who was fired after he tested positive for amphetamines—when he mentioned in his termination meeting that he took Adderall for ADD and offered to show proof of a valid prescription, a federal district court in South Carolina ruled. Agreeing with a magistrate’s recommendation, the court allowed this claim to proceed to trial but granted summary judgment against the employee’s ADA discrimination and retaliation claims. His claims against BMW, which conceded that it was a joint employer for purposes of the ADA, also failed (Gray v. BMW Manufacturing Co., LLC, August 16, 2017, Hendricks, B.).

As part of MAU Workforce Solution’s new-hire process, the employee submitted to a pre-employment drug screen and completed a consent form stating he was taking Adderall. The results of the drug screen were negative and he never again disclosed his Adderall use, although he took it daily throughout his employment with MAU at the BMW plant where he was assigned.

Involved in a forklift mishap several months later, he was required to submit to a drug test. Although the initial onsite screen was negative, the employee reported for a laboratory drug screen, where he again stated on a consent form that he was taking Adderall. His hair sample screen also came back negative but his urine drug screen tested positive for amphetamines. A representative of the company with which MAU contracted to perform the drug-testing confirmation process purportedly attempted on four occasions to contact the employee to request proof of a valid prescription. Although she claimed she left messages for him, he never called her back.

Termination meeting. The employee was terminated shortly thereafter based on the positive drug test result. At the termination meeting, he offered to provide proof of a valid prescription and stated that he was taking Adderall due to his ADD. He was told, however, that because he had failed to respond to calls from the testing site or to provide a valid prescription, the test results had been certified as positive. He sued both MAU and BMW under the ADA and a magistrate judge recommended granting BMW’s motion for summary judgment. The magistrate also recommended granting MAU’s motion with respect to the employee’s discrimination and retaliation claims and denying it with respect to his failure- to-accommodate claim. Both parties filed timely objections.

Notice of disability. MAU argued that the employee’s assertions about his ADD and associated medication were insufficient notice of his disability, and that he had been working for several months without ever requesting an accommodation. However, the court found he reacted to the news of his termination “in the rational way one might expect of an employee who is hearing for the first time that he is being fired for taking a validly prescribed medicine that he faithfully disclosed on a consent form: by offering to produce the prescription.” In this context, a reasonable jury could find his comments sufficient to put MAU on notice of his alleged disability.

MAU next argued that the employee’s “post-termination” request to submit a valid prescription was not a reasonable accommodation because under its existing post-accident drug testing policy, a medical review officer contacts employees who test positive for certain drugs in order to determine if they have a lawful prescription that would explain the positive result. While it claimed the policy was satisfied when the drug testing company’s rep attempted to contact the employee four times, it relied on the rep’s handwritten form documenting her efforts to reach him. The employee, however, testified that he did not receive any of the missed calls and his phone was not set up to receive messages.

Further, while the rep testified that she would typically contact the employer’s relevant representative when she was unable to reach an employee, there was no evidence that she did so here. Nor was there any evidence that either of the employee’s supervisors informed him of his need to provide a prescription despite their testimony they regularly contacted employees to obtain proof of prescriptions themselves. Agreeing with the magistrate, the court found that a reasonable jury could conclude he requested an accommodation when he asked to be allowed to provide proof of his prescription.

Timeliness of request. As to MAU’s assertion that the request was untimely because he had already been terminated, the facts suggested he only received actual notice of the requirement to provide his prescription during the termination meeting itself. Given these circumstances, said the court, a reasonable jury could conclude that MAU refused to provide a reasonable accommodation timely requested by him.

BMW’s liability. Turning to the magistrate’s conclusion that BMW was entitled to summary judgment on all claims, the court found no evidence that it was involved in the decision to terminate the employee from the point where it notified MAU of the forklift accident that triggered the drug test. While he argued that BMW should be held accountable for its failure to take corrective measures within its control in the course of the drug testing, “the only individuals that can rationally be alleged to have discriminated against, retaliated against, or failed to accommodate [the employee] are all MAU employees,” the court pointed out, finding no evidence BMW had knowledge of the termination decision until after it was already done.

No pretext evidence. Objecting to the magistrate’s conclusion that there was no evidence of pretext in the termination decision, the employee argued that if MAU knew the drug company’s rep failed to make contact with him during the prescription validation process, a fact issue remained. But, said the court, one obvious inference that MAU could have drawn from the fact that the company failed to make contact with the employee is that he did not respond to the rep’s communications because he had no valid prescription to produce. “This inference could be simultaneously incorrect and innocent of discriminatory intent,” the court pointed out, noting that nothing in the record suggested that the termination decision was based on his ADD, which, by his own testimony, was unknown to MAU until he disclosed it during the termination meeting.

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