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eLABORate: Opioid User Loses Disability Discrimination Lawsuit for Failure to Engage in Interactive Process with Employer

March 06, 2018

The Americans with Disabilities Act (“ADA”) requires employers to engage in an interactive process with employees to reasonably accommodate a disability. A federal court in Ohio has highlighted, through a dismissal of a lawsuit filed by an employee who used opioids in the workplace, the fact that the duty to engage in the process applies equally to employees as well. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).

The case centered around plaintiff Robert Sloan’s employment as a production manager with Repacorp, Inc., a label manufacturer that utilizes heavy machinery. As noted in the District Court’s opinion, there was no dispute that the machinery Sloan worked with and around was very dangerous. Sloan admitted “[i]f you’re not careful, those presses will kill you.” Due to the dangerous work environment at the Repacorp facility, the company maintains an employee handbook policy that requires all employees to notify management if they are taking nonprescription or prescription medication.

Approximately a year prior to his termination, Sloan began taking a prescribed morphine medication twice daily for neck and back pain. The medication included time-released morphine and instant-release morphine. Sloan would occasionally take the medication at work in a manner not prescribed. Sloan also took the narcotic Vicodin without a prescription, obtaining the pills from both his mother and another co-worker. Sloan did not inform his supervisors at Repacorp that he was taking prescription morphine.

Upon learning that Sloan had been soliciting Vicodin from other employees, Repacorp immediately removed him from the manufacturing floor and required a drug test that same day. Sloan voluntarily submitted to the drug test, which was positive for hydrocodone, the opiate found in Vicodin. Sloan was referred to the company’s Employee Assistance Program (“EAP”) and placed on leave. Sloan’s EAP coordinator requested that he provide certain information from his physician, namely: whether he was permitted to work as a production manager as a result of his medical condition; whether there were any limitations on his ability to work after receiving treatment for his condition; a list of his current medications; and whether the medications prescribed impact Sloan’s ability to concentrate on the job. Repacorp placed Sloan on paid leave pending receipt of this information from his physician. Sloan subsequently revealed to Repacorp for the first time that he also was taking prescription morphine.

Repacorp asked Sloan to consult with his doctor to determine if there were any alternative medications or treatment for his pain condition that did not include opiates. Without consulting with his doctor, or otherwise obtaining the information requested, Sloan stated that he needed “to stay on my medication” and told Repacorp that he “wouldn’t stop taking it.” Repacorp maintained it had no positions that would allow for the use of morphine in the workplace. Sloan’s employment was terminated.

Sloan subsequently filed a lawsuit claiming disability discrimination under the ADA as well as a claim of retaliation. Sloan alleged that he was disabled as a result of degenerative disc disease and arthritis in his neck and back, and that Repacorp failed to reasonably accommodate his request to use morphine.

In granting Repacorp’s motion for summary judgment, and dismissing Sloan’s lawsuit, the District Court determined that Repacorp’s request for more information from Sloan was proper under the ADA, and that his failure to engage in the interactive process with his employer doomed his ADA lawsuit:

Here, there is no dispute that [Sloan’s supervisor] requested Sloan consult with his physician to determine whether opiate medication was required to control the pain arising from his neck and back disability -- a proper inquiry . . . Sloan, without dispute, did not consult with his physician or other treater and, instead, informed [the supervisor] that he “wouldn’t stop taking [morphine].” Sloan’s refusal to engage in the interactive process . . . deprived Repacorp from confirming the extent of his disability and the breadth of potential accommodations that might have reasonably been afforded to him. (internal citation omitted)

The District Court’s decision should be viewed as a lesson to employers on the value of engaging in the interactive process, even if the employee ultimately refuses to participate. However, the ADA requires employers to make an individualized assessment of an employee’s ability to perform a particular job, with a focus on a medical condition’s actual effect on that specific employee. As such, employers should avoid making assumptions about the use of medication in the workplace without obtaining additional information.