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EEOC advances ADA claim based on manufacturer’s requirement employees disclose prescription meds

By Kathleen Kapusta, J.D.

There were disputed questions of material fact about the intended scope of the disclosure policy, how it was actually applied, whether the policy as applied was overbroad, and whether it was objectively reasonable.

Finding fact issues regarding the scope of a metal fabrication company’s prescription drug policy—it required all employees to disclose their prescription medications so it would know when an employee was taking medicine that might affect his or her ability to safely operate or navigate around heavy equipment—as well as whether the policy, as implemented, was justified by business necessity and how it was applied to a terminated office manager who failed to disclose she was taking a muscle relaxant, a federal court in North Carolina denied summary judgment against the EEOC’s claim the policy violated the ADA. And while the EEOC’s claim the company violated the ADA when it terminated the employee for failure to comply with the policy also advanced, its claim she was fired because of a disability failed (EEOC v. Loflin Fabrication, LLC, May 22, 2020, Eagles, C.).

Employees working on the factory floor use welding equipment as well as bobcats, cranes, press brakes, bandsaws, plasma lasers, and forklifts. Although the employee, an office manager, did not work on the floor, she was required, along with other administrative staff, to walk through the shop area from time to time.

Policies. Because of the dangers of working around and with the equipment, the company prohibited employees from working under the influence of narcotics, conducted random drug tests, and required all employees to inform it of any prescribed medications they were taking. As part of her job, the employee filed information about employee prescriptions. There was evidence indicating the owners, management, and employees did not have a consistent understanding of the policy’s scope. And while managers and owners were responsible for administering the policy, they received no training on how to enforce or apply it.

Muscle relaxant. In January 2017, the employee was prescribed a muscle relaxant for neck pain. Between January and September, she took the drug only a few times, usually between 6:00 p.m. and 8 p.m. She did not tell anyone at the company about the prescription. On September 20, she took the muscle relaxant after work. The next morning, she was selected for a random drug test. Another worker, who was present in the break room where the drug tests were administered, overheard her asking the person giving the test if muscle relaxants would show up on the screen. He told the shop supervisor, who had also overheard the employee.

Fired. The shop supervisor then told a co-owner about the employee’s comments. She was terminated for “being insubordinate” about the company’s policies in making “statements in the break room” about her potential failure of the drug test. The co-owner did not first determine whether the muscle relaxant was a narcotic before firing the employee. He also fired her before her test results came back negative for all substances screened.

Examination and inquiry prohibition. Suing on behalf of the employee, the EEOC argued that the company’s prescription drug policy violated the ADA. The ADA provides that employers “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” While “there are some nuances in how the courts evaluate whether a particular inquiry is likely to lead to disclosure of a disability,” the court noted that the company did not contest this element; rather it focused on the business necessity defense.

Business necessity. In the context of prescription drug disclosure, the court pointed out, the EEOC has interpreted the ADA to prohibit across-the-board inquiries about all employee prescription medications unless the employer can show it’s job related and consistent with business necessity to require employees in jobs affecting public safety to report when they are taking medications that may affect their ability to perform essential job functions.

Finding it undisputed the company’s shop floor could be dangerous, the court found fact questions about its prescription drug policy. While the company claimed it only required disclosure of narcotic prescriptions, and that this was necessary for employee safety, the EEOC argued that the company required disclosure of all prescriptions, including those that could not possibly have any impact on worker safety and those that were taken at night or outside of work hours. There was also evidence it required disclosure of prescriptions even if the employee never took the medicine at all. Further, the court noted, there was evidence the company terminated the employee without first determining whether the muscle relaxant was a narcotic. “These disputed questions counsel against summary judgment.”

Voluntary disclosure. And while the company argued the employee was not subject to a medical inquiry because she voluntarily disclosed her prescription, its own evidence, said the court, was that she was fired for violating the policy because she did not disclose the prescription, not for disclosing the prescription. Moreover, even if voluntary disclosure is a defense to a medical inquiry, it was only after she had been selected for a drug test that she admitted she was taking the muscle relaxant and thus a jury could find her disclosure was not voluntary, said the court, denying summary judgment against this claim.

Termination based on prescription disclosure. As to the EEOC’s claim that the company’s termination of the employee based on her failure to comply with the policy violated the ADA, the court found it “logical that if the prescription drug disclosure policy was overbroad and not justified by business necessity, either generally or as applied to an office worker like [the employee], and she was terminated for violating that illegal policy, then [the company’s] act in terminating her violated the ADA,” Thus this claim also advanced.

Termination based on disability. Although the EEOC, in the alternative, argued that the company fired the employee because of a disability, there was no evidence it regarded her as disabled, said the court, noting that at most, she mentioned her neck pain several months before she was fired. An employer’s knowledge an employee has neck pain and takes prescription medication is not enough to show it regarded her as disabled, the court stated.

As to whether she was actually disabled on the day she was fired, the court noted enough evidence to infer that during the nine months before she was terminated she intermittently experienced neck pain that affected her ability to turn her head, she occasionally experienced tingling down her arms, she saw a doctor once, and every couple of months, including the day before she was fired, she the pain was bad enough that she took a muscle relaxant so she could sleep. Further, three weeks after her termination, she was diagnosed with cervical disc disorder with radiculopathy.

“While pain can be disabling and it need not be constant, surely it must be more than this,” the court reasoned, noting a lack of evidence that the pain interfered with the employee’s ability to work. The EEOC produced evidence of an impairment—an intermittent ability to turn her neck possibly with some intermittent tingling—but there was “no indication it crossed the line into a substantial limitation on her functioning,” said the court, granting summary judgment against this claim.

Punitive damages. Nor were punitive damages appropriate, said the court, finding no evidence of actual malice or reckless indifference on the part of the company.