An employee who refused to stop using morphine and would not engage in the interactive process with his employer could not survive summary judgment on his disability discrimination and retaliation claims under the Americans with Disabilities Act. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).

The employee, a production manager in a manufacturing environment, worked around heavy machinery. Although the employee spent only a small portion of his time actually working on the machinery (10-20%), the environment was dangerous. The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours. The employee did not have a prescription for Vicodin and obtained pills from coworkers and family members. He also used morphine other than as directed by his prescription on at least one occasion. Although the employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely, the employee failed to do so.  The employee’s opioid use was unknown by the employer for several months.

The employer eventually received a report that the employee had requested a Vicodin from a coworker a few weeks earlier. The employer required the employee to submit to a drug test, and he tested positive for hydrocodone (the opioid found in Vicodin). The employer referred the employee to its Employee Assistance Program and put the employee on leave pending a work release from his physician.

During the employee’s leave, he disclosed his morphine prescription. The employer asked the employee to confer with his doctor about whether there were any alternative treatment options to opioids. Without consulting his physician, the employee told the employer that he needed to stay on his medication and refused to stop taking morphine. The employer indicated the employee could not remain employed if he was using morphine, and the employee’s employment ended following this conversation.  (During his deposition, the employee admitted that the label on his prescription morphine warned against operating heavy machinery).

The employee subsequently filed suit, alleging disability discrimination and retaliation. The employer moved for summary judgment, arguing that the employee caused a breakdown in the interactive process by failing to discuss alternative treatments with his doctor. The employee argued that he could safely perform his job while using morphine, and that the employer failed to conduct a direct threat analysis before denying the request. The court agreed with the employer, however, holding that the employee impeded the employer’s ability to investigate the extent of his disability and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication could reasonably accommodate his disability. Holding that an employer “has the ability to confirm or disprove the employee’s statement[s]” regarding his disability and medical treatment, the court granted summary judgment on the disability discrimination and retaliation claims.

This decision serves as a reminder that an employee’s lack of cooperation during the interactive process is often a strong defense to both ADA discrimination and retaliation claims.  However, employers also must ensure that they conduct individualized assessments, and should not make assumptions about the use of certain drugs without medical evidence.