Blog Labor & Employment Report by Shawe Rosenthal LLP – Fiona W. Ong and Garrick Ross
Have you read the warnings on prescription painkillers? They can be pretty scary – “May cause drowsiness.” “May cause dizziness.” “Do not operate a car or dangerous machinery.” (Or words to that effect). I think by now, everyone is aware of the risks associated with controlled substances. Certainly, the opioid epidemic did not earn its name lightly. So, it’s not surprising that some employers are concerned when employees take prescription medications that come with those warnings – particularly when those employees are working with heavy machinery or sharp objects, or getting behind the wheel of a vehicle. But it is important for employers to understand when they can – and cannot – prohibit employees on such medications from working.
A recent case provides some guidance. In Byrd v. Outokumpu Stainless USA, LLC, an applicant for a position in the melt shop of a steel mill tested positive for a controlled substance because of a hydrocodone prescription. While the applicant passed the pre-placement physical, the nurse who performed the examination ultimately recommended excluding the applicant from safety-sensitive work, citing his use of hydrocodone. It probably seems reasonable to most people that, given the dangers a melt shop employee faces, the employer rescinded the offer.
But of course, litigation ensued, and the parties dueled over just how much of a safety risk the hydrocodone posed. As you may know, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to applicants and employees to enable them to perform the essential functions of the job in question or “to enjoy equal benefits and privileges of employment”. However, as the EEOC notes, an employer can require that an employee not pose a direct threat to themselves or others in the workplace. Now a direct threat means a “significant risk of substantial harm” as established by objective, factual evidence – the risk cannot be just slightly increased, speculative or remote. Also, employers must consider whether there are reasonable accommodations that can eliminate or reduce the risk to an acceptable level.
So, in this case, the employer argued that the applicant’s use of the hydrocodone automatically posed a safety threat, and therefore the case should be thrown out as a matter of law. However, the court focused on whether there was some demonstrable evidence outside the prescription’s warning that hydrocodone had adverse side effects. Here, the nurse lacked actual knowledge of the effects of hydrocodone – all she knew about hydrocodone was the warning attached to the prescription. The nurse then failed to corroborate the prescription’s warning with a doctor and never asked the applicant about his experience with the drugs. (And notably, the applicant stated that he only took the drugs at night, to help him sleep). Without those facts the court found that the employer’s reliance on the recommendation was unreasonable, and sent the case to a jury trial.
Although the employer could prevail at trial, any victory will come at a high cost. As we all know, legal fees alone will make this a painful endeavor for the employer, never mind the potential payout from an unfavorable verdict (trials are notoriously unpredictable). Ultimately, this should serve as a lesson for employers that they cannot automatically assume that an employee’s or applicant’s use of prescribed controlled substances poses a threat in the workplace – at least generally. Employers who are subject to DOT regulations and the specific terms of some federal contracts might be required to prohibit employees taking those prescriptions from working. But for most employers, they still need to engage in the interactive process to see if there truly is a threat. Factors that may be important are:
So, employers, make sure to learn all you can by conducting an individualized assessment–get that information–and get it from the proper medical experts!