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Pipefitter who alleged he was not rehired because of opioid prescription advances disability claim

By Kathleen Kapusta, J.D.

A union pipefitter who takes opiates for lumbar radiculopathy, and who alleged he was not rehired by an employer that accessed his drug test results after a pre-employment drug screen and learned what prescription medication he was taking, can proceed to trial on his ADA disability discrimination claim (other than his regarded-as claim), a federal court in Alabama ruled, finding fact issues as to whether he was a qualified individual with a disability and whether he suffered an adverse action because of his disability. His claim that the employer made an improper medical inquiry failed however (Upton v. Day & Zimmerman NPS, January18, 2018, Kallon, A.).

Eight years after he was injured in a car accident, the employee, who suffered from pain in his lower back that radiated to both legs, was diagnosed with lumbar radiculopathy. Since that time (2007), he has taken opiates prescribed by his doctor, including MS Contin, a long-lasting oral form of morphine.

Self-identified as disabled. The employee worked as a pipefitter for D&Z, the primary maintenance contractor for several Southern Company facilities. As is customary in the industry, he was hired on a temporary basis and laid off upon completion of the job. He had at least seven separate temporary stints for D&Z and self-identified as disabled on the employee information form he submitted at the beginning of each work stint.

Maintenance agreement. His employment was governed by a maintenance agreement between his union and Alabama Power, a Southern Company subsidiary. The agreement required that all workers pass a five-panel drug test before working at any power plant, unless they have been tested in the past six months. Each time he took a drug test, he tested non-negative for opiates and successfully completed the medical review process to verify his prescriptions were legitimate, including submitting a letter from his doctor attesting to his ability to work safely while taking the prescription.

Doctor’s letter. When he was referred in January 2015 to D&Z for a power plant job, he took a drug screen and submitted his doctor’s supporting letter, which in addition to verifying the prescription and attesting to his ability to safely work while taking the medication, informed D&Z that requiring employees to disclose their medications may violate the ADA. He was not rehired, prompting him it sue under the ADA.

Disability discrimination. The employee alleged D&Z violated the ADA by refusing to rehire him on the basis of “his previous disclosures of his disability status and his prescriptions for medication,” “his record of disability,” or “his actual disability.” The parties disputed whether the employee’s diagnosis of lumbar radiculopathy was sufficient for the court to find as a matter of law that he had a qualifying impairment. Citing to the Sixth Circuit’s decision in Neely v. Benchmark Family Servs., D&Z argued that because the diagnosis was based solely on the employee’s subjective complaints of pain, it could not constitute a disabling impairment. But Neely held that “self-described symptoms… without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity,” said the court here, noting that the employee had a medical diagnosis. In the absence of any citation to a case from the Eleventh Circuit, the court declined to find as a matter of law, based on an out-of-circuit unpublished case, that a diagnosis based solely on self-described complaints of subjective pain cannot qualify as a disabling impairment under the ADA.

And while D&Z alternatively argued that the employee was not disabled because his condition did not substantially impair him in any major life activities, this overlooked his testimony that he has difficulty walking, standing, and kneeling due to back, leg, and knee pain, and that he was purportedly unable to get out of bed in the morning without his medication. This, said the court, was a matter within the province of the jury.

Regarded-as claim. As to his claim that he was regarded-as disabled because he self-identified as disabled and submitted letters from his doctor identifying his medications each time he applied for a work stint, the employee did not allege that the decisionmaker for the job at issue here had access to the documents in which he self-identified and thus this contention did not prove his claim. The employee also contended that the decisionmaker learned of the positive drug test for morphine by accessing his January 2015 drug test results, and that accessing the test results indicated that he knew the employee had a “a chronic pain syndrome or a cancer of some kind.” However, said the court, he failed to cite any law in support of the contention that the knowledge he tested positive for morphine, which is found in both legal and illegal drugs, was sufficient to establish that the decisionmaker regarded him as disabled. Nor was there any evidence the decisionmaker saw the doctor’s letter, observed the court, granting summary judgment in favor of D&Z.

Qualified? Turning to whether he was a qualified individual, D&Z argued that he failed to take his medications as prescribed a total of nine times in four years while the employee conceded to two occasions of noncompliance. Although the employee argued his doctor’s continued treatment of him and provision of letters proved he complied with his prescription, the doctor allegedly supplied the letters without properly determining that the employee could perform his job while taking opiates, provided these letters to him “on demand” without the employee having to undergo any type of evaluation or assessment by a physician, and did not personally evaluate him at all in 2014. Based on these fact issues, the court denied the parties’ cross-motions for summary judgment on this issue.

Discrimination because of disability. Even if the employee was a qualified individual, D&Z argued that his discrimination claim would still fail because he could not show causation. D&Z contended that it did not hire the employee because of his previous absence and performance issues. Observing other record evidence—including the testimony from the union business manager that the decisionmaker stated he based his decision in part on the employee’s prescribed medication and the delays between his drug test and clearance for work; the decisionmaker’s deposition testimony that he could not recall whether he discussed the employee’s medications when discussing with his boss the decision not to rehire him; and the employee’s contentions that his supervisors never issued him a disciplinary write-up for absenteeism, D&Z included his name on a list of workers laid off due to lack of work rather than for alleged cause, and his union subsequently referred him back for work based on his layoff designation—the court found that summary judgment was inappropriate on this claim.

Medical inquiry. The employee also contended that D&Z make an improper medical inquiry when it allegedly accessed his doctor’s letter and the Medical Review Office’s report that he had tested positive for morphine. Even if true, said the court, “[m]edical information may be given to—and used by—appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA” without violating § 12112(d)(2)(A) of the Act. Thus D&Z was entitled to summary judgment on this claim.

Retaliation. Finally, the employee argued that D&Z refused to rehire him in retaliation for his allegedly protected conduct of submitting a letter from his doctor stating that D&Z’s policies regarding the disclosure of specific medications may be in violation of the ADA. Here, the court turned to the maintenance agreement, finding that it required the disclosure of specific medications. And even if it did not require the disclosure and that was a requirement arbitrarily imposed by the decisionmaker, as the employee alleged, the Eleventh Circuit has held that such an inquiry is permissible under the ADA at the pre-offer stage as long as the employer refrains from asking “disability-related questions.” Thus, said the court, in light of this and the plain terms of the agreement, the employee’s belief that the decisionmaker and/or D&Z violated the law solely by inquiring about his specific medications was not objectively reasonable, and as such, his retaliation claim failed.