Labor & Employment Law Daily Revoking job applicant’s offer based on his taking prescribed methadone may support ADA discrimination, retaliation claims
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Tuesday, April 7, 2020

Revoking job applicant’s offer based on his taking prescribed methadone may support ADA discrimination, retaliation claims

By Robert Margolis, J.D.

The employer, a vinyl flooring manufacturer, relied on an allegedly conflicted doctor and did not permit the applicant to obtain a second opinion.

A job applicant, who had his job offer revoked when the employer received a physician’s determination that the applicant could not safely perform the job while taking prescribed methadone, has established genuine material factual issues on four separate ADA theories, a federal district court in Alabama held. The applicant requested to visit a different physician for his preemployment drug screening because of a previous conflict, but the HR director sent him to that same doctor. Even after he passed the drug test, the employer’s HR director sent the doctor a new job description, with new job duties, which ultimately led to the physician’s conclusion that the employee could not perform the job safely. The court denied the employer’s summary judgment motion in its entirety (Lisby v. Tarkett Alabama, Inc., March 31, 2020, Haikala, M.).

Alleged disability. The applicant had ADHD, severe anxiety, and chronic lower back pain. Under a doctor’s care, for years he took Adderall to manage his ADHD, benzodiazepines for his anxiety, and methadone for his pain. Until he was fired in 2013, the applicant worked in a county job operating heavy machinery, driving trucks, and handling dangerous chemicals. While working for the county he took Adderall and methadone, but the methadone did not impair him. He had work-related truck accidents twice, and tested positive for prescribed amphetamine after each one. An occupational physician noted a safety concern about the applicant driving a truck after the first incident, and again after the second, after which the county fired the applicant. The applicant filed an EEOC charge against the county and the doctor alleging discrimination.

After the county job, the applicant worked without incident for another employer as a welder, forklift driver, and truck driver, took methadone during that employment.

The employer is a manufacturer of vinyl flooring. In May 2015, the applicant spoke with its human resources director about a newly created “cycle counter” position—an inventory control position. The applicant was offered the position, pending the results of a drug test and physical examination. The applicant asked the HR director if he could visit a different doctor than the one involved in the prior EEOC charge, because he “may have trouble” with that doctor based on an “ongoing dispute,” a “pending investigation” that could cause a “future problem” and have “legal ramification[s].” The applicant offered to pay for another physician to conduct the examination, and the HR director indicated that would not be a problem, but she would have to find out.

Nonetheless, she sent the applicant to that same doctor. While the applicant tested positive for prescribed amphetamines and methadone, based on a job description provided by the employer that did not include forklift operation, the doctor reported that the applicant passed the drug test. The HR director then told the applicant to attend an orientation session. On the day of the session, however, the HR director faxed to the doctor a second job description that included forklift operation, and the doctor called her to tell her the applicant cannot perform that job safely due to the effects of methadone. The HR director then went to pull the applicant out of the orientation session, and he testified that she said out loud in front of others that he tested positive for amphetamines and methadone. She told him she would set up another screening test with another physician, but that never occurred. The job offer was withdrawn, and the applicant sued under four ADA theories. The employer moved for summary judgment on all claims.

Discrimination. The court found that the applicant satisfied his primafaciecase for discrimination and provided sufficient evidence that the employer’s proffered nondiscriminatory reason for not hiring him was pretextual.

Prima faciecase. The court found a genuine issue of material fact as to whether the applicant had an actual disability, due to his ADHD, severe anxiety, and chronic back pain. The applicant and his wife both testified about the impact of his ADHD and anxiety when not on medication, including frequent panic attacks and inability to focus. The back pain prevents him from standing or sitting in the same position for long periods, engaging in physical activity, and sleeping comfortably. But even if there was no actual disability, this element of the prima facie case can be satisfied if the employer perceived the applicant to have a disability. A jury could determine that the employer perceived the applicant to be disabled, due to the doctor’s report that taking methadone can affect the applicant’s ability to operate a forklift safely.

Next, the employer argued that because the applicant posed a safety threat to himself and others, he could not establish that he was a “qualified individual.” But Eleventh Circuit law and federal regulations require an employer to rely on the “best available objective evidence” or an “individualized assessment” of an ADA plaintiff’s present ability to safely perform the job’s essential functions. In this case, the employer relied only on the opinion of the doctor, who did not examine the applicant or investigate whether the applicant exhibited impairments from taking methadone. Instead, he just considered all long-term opiate users to be safety risks. In addition, the applicant performed similar duties in his prior job for several years while taking methadone, without impairment. Thus, the court found evidence that the employer did not rely on best available evidence or an individualized assessment.

Finally, the fact that the employer revoked the applicant’s job offer due either to the applicant’s actual or perceived disability satisfied the prima facie case element of him being subjected to unlawful discrimination.

Pretext. While the employer’s explanation that it chose not to hire the applicant for safety reasons satisfied its burden to articulate a legitimate nondiscriminatory reason, the applicant created a genuine factual issue with evidence that the reason was pretextual. In particular, the court highlighted the “suspicious circumstances” surrounding the HR director’s decision. After the applicant passed the first drug test, the HR director sent the doctor a second job description “for reasons not clear from the record” according to the court, which materially changed the job requirements to include forklift operation. In addition, she sent the applicant to the very doctor he indicated could have a conflict based on a prior dispute.

Unlawful medical inquiry. This claim rested on the HR director’s violation of the applicant’s ADA-mandated confidentiality by communicating the results of his drug test in front of others attending the orientation session. While the parties gave disputed versions of the events that day, the applicant’s version could constitute a violation, and the disputed fact issues precluded summary judgment, the court held. The applicant testified that he suffered emotional distress from others learning that he takes drugs, which sufficed to show damages.

Failure to accommodate. The court held that evidence, construed in the applicant’s favor, showed that he sought a reasonable accommodation by requesting to see a different doctor, both before his test, and again after the results were given. Because the request was denied, and another test may have led to a determination that the applicant could perform essential functions of the job, the court denied summary judgment on this claim.

Retaliation. The court found a prima faciecase of retaliation based on the temporal proximity of when the employer learned of the applicant’s prior EEOC charge against the county and doctor, and when it revoked the job offer—those events occurred six days apart. The court then applied the same pretext analysis as above with respect to the discrimination claim, and denied the employer summary judgment on this claim as well.

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