What do you get when you cross a forklift operator using opioids with HR playing doctor?




You get a jury trial on an Americans with Disabilities Act claim.

Paging Doctor HR!

Last night, I read a 38-page federal court decision with a fact pattern that, unfortunately, sounds all-too-familiar.

The plaintiff applies for a position as a forklift operator — a position he has held many times before. But there’s a catch. The plaintiff takes prescription opioids for persistent pain.

Naturally, when the defendant learns about this prescription, it starts asking questions. For example, the defendant asked the plaintiff to provide a physician’s note confirming that his medications would not create safety concerns when he operated a forklift. The plaintiff obliged. Indeed, he provided three separate doctor notes upon request. However, the defendant remained on the fence about the hiring.

Enter human resources, which expressed some initial reservations about hiring the plaintiff because the plaintiff’s doctor had prescribed “some of these are very powerful medications.” To its credit, however, HR did recommend discussing the physical requirements of the position with the plaintiff. Unfortunately, it doesn’t appear that anyone did so. Plus, no one called the plaintiff’s doctor. And the defendant did not contact another physician for advice on this issue.

A few days later, HR advised decisionmakers not to hire the plaintiff because his medication presented a safety concern.

So, the plaintiff sued the defendant for ADA discrimination.

A jury will decide if the plaintiff was otherwise qualified to perform the forklift operator job.

There is a long discussion in this opinion about whether the side effects of medication can constitute a regarded-as disability. Some might call the discussion fascinating. Those people would likely be my Valentine. (Hint: nerdy employment law and top-shelf bourbon is the way to my heart.)

TL;DR: An employee who alleges that his employer regarded him as disabled can do so without first needing to show the absence of an equally efficacious (and less impairing) alternative treatment.

Now, I’ll devote the rest of this post to discussing whether a forklift operator on opioids is “otherwise qualified” to do the job. Put simply, can he perform the essential functions of the job with or without a reasonable accommodation.

In short, it depends.

A disabled individual is not “qualified” if he poses a “direct threat” to the health or safety of others that a reasonable accommodation cannot eliminate. But, an employer can’t make snap judgments or, worse yet, stereotypes. Instead, employers must conduct an “individualized inquiry” to determine whether the employee’s disability or other condition disqualifies that employee from a particular position.

Did that happen here? Maybe. Doing so requires an employer (or its representatives) to conduct a thorough examination of the employee or applicant, bearing in mind the specific functions of the position in question and the employee’s ability to perform those functions in light of all available evidence.

Here, the defendant did not communicate directly with any doctor(s) about the plaintiff’s ability to perform the job’s essential functions. That’s not to say that an employer must consult a doctor. But, it’s better than playing doctor yourself. And the record at summary judgment did not reveal whether the defendant’s internal discussions involved the plaintiff’s individualized ability to operate a forklift in light of any direct-threat factors and what evidence the defendant relied upon in reaching its decision not to hire him.

Therefore, a jury will get to hear the evidence and decide.

Employer takeaways.

  1. Make sure each position has a job description that lists essential functions.
  2. If you have concerns about the ability of an applicant or employee to perform the essential functions of the job (with or without accommodation), perform an individualized assessment.
  3. As part of that assessment, communicate with the individual (and their doctor).
  4. You’re not a doctor (unless you are). So, don’t act like one. Consider engaging a separate physician to ascertain how the individual will perform the job despite any concerns or direct-threat factors.
  5. Keep all medical information confidential.
  6. Don’t stereotype (see No. 2 above). Keep an open mind and discuss accommodations in good faith.
  7. Document all discussions, including the ultimate decision(s) whether to accommodate or terminate.
“Doing What’s Right – Not Just What’s Legal”
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