Employment Law Daily Withdrawing job offer to sonographer who used prescription narcotics didn’t violate ADA
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Monday, October 22, 2018

Withdrawing job offer to sonographer who used prescription narcotics didn’t violate ADA

By Kathleen Kapusta, J.D.

Granting summary judgment against the ADA medical inquiry claim of an applicant for a sonographer position who took narcotics, a muscle relaxer, and an antidepressant for back pain and fibromyalgia, a federal court in Colorado found the employer properly conditioned its job offer on the results of a medical exam and/or inquiry because all entering employees in the same job category were subjected to an exam and/or inquiry regardless of disability. Further, the triggering criteria for the exam—use of certain medications—were job related and consistent with business necessity. The applicant’s ADA and Rehab Act regarded as claim also failed, as there was no evidence she could perform the job’s essential function of mental acuity (Sumler v. University of Colorado Hospital Authority, October 17, 2018, Moore, R.).

Upon applying for a sonographer position, the applicant received an offer conditioned on successfully completing a pre-employment screening. In response to an employee health questionnaire requesting a list of current medical conditions and medications, she listed fibromyalgia and several medications, including two narcotic painkillers, a muscle relaxer, and an antidepressant. Pursuant to the employer’s policy, the use of these medications required further examination by an occupational health physician.

Offer rescinded. Accordingly, the applicant met with a doctor who contracted with the employer to provide pre-employment health screenings. Based on this meeting, a review her medical records, and a discussion with her personal physician, the doctor concluded that the applicant suffered from a spine-related issue that caused back pain and fibromyalgia. He then recommended seven restrictions on her work activities, including lifting restrictions and restrictions on when she could use the various medications prior to a shift. Concluding that the applicant was not qualified for the position, the employer rescinded the job offer.

Medical inquiry claim. Moving for partial summary judgment, the applicant argued that the employer violated the ADA because not every person who fills out the health questionnaire is examined by an occupational health physician regardless of disability. While she first argued that the EEOC regulation on pre-employment medical examinations (and/or inquiries) should be rejected because it broadened the scope of the ADA, the employer countered that the “regulation makes sense of the statutory language” by clarifying that permission to conduct a post-offer medical examination includes permission to conduct a less intrusive post-offer medical inquiry. Not only was the regulation entitled to deference, the court found the employer’s medical inquiries of the applicant complied with the ADA and implementing regulations.

To start with, the court observed, the applicant did not allege any claim based on the medical examination. Rather, she alleged that the questions in the pre-employment medical questionnaire violated the ADA’s medical inquiries provisions. Explaining that it could decline to address her arguments relating to her medical examination as there were no facts alleged in the operative complaint to support such a claim, the court nonetheless found her medical inquiries “claim” based on the medical examination ultimately failed.

Uniformly applied process. All employment candidates complete the same health questionnaire form regardless of disability, the court stated, and based on the applicant’s responses, the employer compared her answers to its “algorithm”—a decision tree as to when an applicant should be subjected to a further medical evaluation. This algorithm requires a further health screening (or medical examination) if an applicant identifies using medications that are narcotics, antidepressants, tranquilizers, or muscle relaxers, and here, the applicant was using three out of the four “trigger” medications. There was nothing wrong with such a uniformly applied process, said the court, and the employer properly conditioned its offer of employment on the results of the examination (and/or inquiry), because all entering employees in the same job category were subjected to such an examination (and/or inquiry) regardless of disability.

Business necessity. Further, the triggering criteria were job related and consistent with business necessity. Not only was it undisputed that sonography requires a great amount of mental acuity and uninterrupted concentration, there was evidence that chronic opioid use compromises decision-making. Because the applicant presented no evidence that mental acuity and concentration were not job-related or consistent with business necessity, the employer was entitled to judgment as a matter of law on this claim.

Regarded as claim. Turning to the applicant’s claim the employer erroneously regarded her as having an impairment more significant than her actual impairment, the court noted that she dedicated substantial effort to establishing she could lift more than 50 pounds. However, neither party disputed the mental requirements of the sonographer position, including mental acuity and great uninterrupted concentration. Indeed, said the court, “the use of mental acumen to obtain ultrasound images for a physician’s diagnosis, treatment, and prevention of medical conditions is the job of a sonographer—in other words, it is an essential job function.”

Further, said the court, the regulatory factors outlined in 29 C.F.R. § 1630.2(n)(3) weighed in favor of concluding that mental acuity was an essential function of the sonographer job. In the employer’s judgment, mental acuity, analysis, and great concentration were essential functions included in the job description; although the amount of time was not specified, it appeared to the court as if obtaining and analyzing ultrasound images was the main function for a sonographer; and the consequences of a misdiagnosis could be severe.

Medical literature. In addition, there was evidence in the form of objective medical literature that the applicant’s medications cause compromised cognitive function and decision-making, and her own doctor warned that her prescriptions could cause drowsiness and unclear thinking, and cautioned against caring for herself or others as reflexes and reaction time might be slowed without her being aware of it. Observing that the applicant failed to present any evidence that she was able to perform this essential job function, the court found she was not qualified for the position and the employer was entitled to judgment as a matter of law.

Pretext. Nor could the applicant show the employer’s legitimate reasons for withdrawing the offer were pretexual. While she contested the occupational health physician’s medical opinion and restrictions—arguing that he was not certified in occupational medicine, failed to perform a functional capacity exam, did not provide HR with the basis for his opinion, and was biased in the employer’s favor because he was compensated—the issue was not whether his restrictions were medically right or wrong, but whether the employer’s ADA coordinator honestly believed in his reason for rescinding the applicant’s employment offer and acted in good faith on that belief. And here, there simply was no evidence her employment offer was withdrawn based on myths, fears, or stereotypes associated with her “regarded as” disability.

Finally, while she also took issue with the requirement that a sonographer be required to lift 50 pounds, the “Court cannot resist pointing out the irony in Plaintiff’s suggestion that sonographers who are sixty-six years old may not be strong enough to lift fifty pounds. Such a discriminatory, age-related stereotype cannot be used to support Plaintiff’s disability-related claim of discrimination.”

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