Employee Pain Management and the ADA

By Lehr Middlebrooks Vreeland & Thompson, P.C.

March 29, 2018

The national opioid epidemic of course has workplace implications, as more employees either have prescriptions for or are consuming pain medicine, such as morphine or Vicodin, with or without a prescription. This raises questions about employer rights to require substantiation that medication will not interfere with the job and to review with the employee whether alternate forms of pain management medicine are available, to reduce a risk at the worksite.

In the case of Sloan v. Repacorp, Inc. (S.D. Ohio, Feb. 27, 2018), the employee worked as a production manager for a company which uses heavy equipment to manufacture and print labels for other businesses. Sloan did not have to operate equipment most of the time, but his job responsibilities required that he spend several hours a day interacting with employees in and around dangerous equipment. Company policy required employees to notify the company in the event employees were taking prescription or over the counter medication. (Note that such a policy could be overboard under the ADA because it does not take into account whether prescription medication impacts an employee's job duties, but Sloan did not litigate this point).

Sloan had a degenerative disk disease and arthritis in his neck and back. He began taking prescribed morphine and unprescribed Vicodin at work, without notifying his supervisor as required under company policy. The company found out about Sloan's opioid use after one employee told the company that Sloan was purchasing Vicodin from another employee. Sloan was subjected to a drug test in which he tested positive for hydrocodone (which is in Vicodin). Instead of terminating him for using a controlled substance without a prescription, the company placed Sloan on leave and directed him to participate in the company's employee assistance program. Sloan then disclosed to the company that he was taking morphine according to a physician's prescription. Importantly, when the company then asked Sloan to find out from his physician if Sloan could receive other pain management treatment which would not create a risk of harm to himself or to others while at work, Sloan did not wait on his physician's response but told the president of the company that he needed to "stay on his medication" and he "would not stop taking it." Because Sloan had refused to engage in the interactive process regarding the question of whether or not he could perform his job without opiates (which he had admittedly misused by taking non-prescribed Vicodin in combination with morphine), Sloan was terminated. 

Of course, Sloan filed an ADA lawsuit, claiming that the company did not accommodate his disability because it refused Sloan's request to continue to use prescription morphine. Interestingly, the company did not terminate Sloan for the non-prescription use of Vicodin but rather for Sloan's refusal to see if alternatives to opiates were available. Sloan asserted that the employer failed to determine that Sloan created a "direct threat" of harm to himself or others before terminating him for the morphine use. The court rejected Sloan's argument, stating that termination was appropriate for Sloan's refusal to cooperate with the company's request to see about alternatives to the use of opiates in this high risk environment. By refusing to comply with the company's request, the company could not determine "the extent of his disability and the breadth of potential accommodations that might have reasonably been afforded to him." Accordingly, the court granted the employer summary judgment.

This case is instructive of how employers may use their rights to manage issues regarding employee use of pain medication during the course of the work day:

1. Employers may require that employees notify the employer if they use any prescription or non-prescription medication which may impair their safety, quality of work, or reliability.

2. If an employee makes such a disclosure, the employer has the right to require the employee to consult with the employee's physician to see if an alternative treatment plan is available to reduce those risks. Medical inquiries should be made through HR or central officer who is not the employee's direct supervisor.

3. Should the employee comply with the employer's policy and request, the employer should then evaluate in an interactive manner with the employee and the employee's physician what accommodation, if any, may be needed or available. Remember that prescription opiate use, if used as prescribed, will not necessarily impair employees in all jobs.

4. Employers are not required by the ADA to accept the risk of harm to an employee, risk to other employees, or risk of damage to equipment based on employee use of prescription or non-prescription drugs.

5. While not an issue in this case, employers can and should take immediate action to remove an employee from the workplace if he or she presents signs of impairment. Remember to have someone else drive the employee to the drug testing facility and/or home in such circumstances.

The process outlined above is within an employer's rights to act and hold employees accountable should employees fail to follow employer policy or engage in the interactive process under the ADA.