As I discussed in a blog post last year, the Equal Employment Opportunity Commission has been bringing cases on behalf of applicants/employees who use lawfully prescribed opioids (including methadone) against employers who fail to conduct an individualized assessment of the applicant/employee to determine whether those drugs made them unqualified for the position. In EEOC v. Steel Painters LLC, the U.S. District Court for the Eastern District of Texas held that a reasonable jury could find that the employer did just that.

Case Background. In 2012, an industrial painter developed an addiction to opioid pain medication after receiving treatment for an on-the-job injury. In 2013, he enrolled in a medically supervised drug rehabilitation program and began an ongoing prescription for methadone (which contains opioids) to treat his addiction. In September 2016, the employer contacted him about a job, and on September 19, he completed a medical history summary form disclosing that he was taking prescription methadone and underwent a drug test. The employer put him to work the next day before it had received the results of his drug test.

On September 26, the drug testing facility informed the employer that the painter had tested positive for methadone and he was removed from the jobsite. The painter provided verification of his prescription to the facility, and the next day, the facility sent the employer a final report indicating that his drug test results were negative. That same morning, the employer instructed the painter to have his doctor complete a prescription verification form pursuant to its policy. The form required the doctor to attest that the employee can safely perform safety sensitive duties while taking the prescription medication. His doctor refused to sign the form because of the clinic’s privacy policy, but gave the painter a letter that verified his prescription and provided a phone number to call for additional information. The next day, he gave the administrative manager the letter and requested to be sent to the employer’s doctor for clearance. The administrative manager refused and told him that the employer’s doctors would not clear him because “we don’t normally hire people on methadone,” and then she terminated him. She also did not attempt to call the number provided by the clinic. The EEOC then filed a lawsuit asserting that the employer terminated the painter because he had a record of a disability under the Americans with Disabilities Act (“ADA”).

The Court’s Decision. To establish a case of discrimination under the ADA, a plaintiff must show that (1) they have a disability as defined by the ADA (meaning that they are currently disabled, have a record of disability, or are regarded as being disabled); (2) they are qualified for the position; and (3) they were subject to an adverse employment action because of their disability. If the plaintiff establishes these three items, a rebuttable presumption of discrimination arises, and the employer must then offer a legitimate, nondiscriminatory reason for its action. If the employer makes this showing, the plaintiff must demonstrate that the employer’s reason is a pretext for discrimination. Notably, current drug addicts are not protected under the ADA, but recovering addicts may be.

The Court found that the employee had a record of a disability based on his testimony describing the physical and mental impairments that he experienced while using opioids and during withdrawal. He also claimed that his continued use of prescription methadone along with counseling was necessary to avoid withdrawal symptoms and prevent a relapse into addiction. The Court further held that the jury could decide whether his failure to submit the verification form made him unqualified to perform his safety sensitive position. Of significance to the Court on this point, the employer had constructive knowledge of his prescription from his medical history forms but cleared him to work for four consecutive days, and had actual knowledge after the drug test and still cleared him to work the following day.

The Court further held that statements made by the administrative manager could allow a jury to infer discrimination and that the EEOC presented sufficient evidence to show that the employer’s reliance on the policy was pretextual. The policy was implemented in January 2016 but was applied for the first time in September 2016 after the employer had received the results of the painter’s drug test. The Court also found the employer did not comply with its own policy because it did not remove him from service “immediately” after discovering he was taking a prescription medication without completing the verification form.

Tip for Employers. Employers should have an ADA compliant procedure for conducting an individualized assessment of an applicant/employee who is enrolled in any form of alcohol, drug, or illegal substance rehab, or who is using a lawfully prescribed opioid, in order to determine whether the individual can safely and effectively perform the essential job functions, with or without reasonable accommodation. It is clear that, in this case, the employer’s failure to follow its own policy and the statements made by the administrative manager undercut its defense to the claim.