In a previous blog, we talked about marijuana and the ADA. What about narcotics that are prescribed by a physician subsequent to a surgery? Would it be a reasonable accommodation to allow the plaintiff to return to work while using narcotic medications? It’s a justiciable question given the facts it had before it says the Western District of Oklahoma.

In Holmes v. Board of County Commissioners, (2013 WL 2368394 (W.D. Okla. May 28, 2013), the plaintiff began working as a deputy clerk in the County Clerk’s office on December 11, 2016 (while the Board of County Commissioners was the named defendant in the case, this was due to the pleading requirements. The actual defendant was Cleveland County.) Her job duties was to index daily documents, which required accuracy and inputting the data. In 2008, she had back surgery, and her doctor imposed a 30 pound lifting restriction for her return to work. In July and August 2010, the plaintiff began exhibiting characteristics of intoxication or impairment at work. Those characteristics included slurred speech or other behaviors suggesting an altered state or being out of it. Plaintiff claimed this was due to her medication being changed, a change she did not tolerate well. Her last day of work was August 16, 2010 and she was placed on unpaid leave from August 17, 2010 until she was terminated on May 1, 2011. On August 23, her employer received a phone call from the plaintiff, during which the plaintiff appeared to be in an intoxicated state. The employer on August 24, 2010, received another note from the plaintiff doctors saying that the plaintiff was under their care and could return to work on August 30 with a 5 pound lifting restriction and the use of a wheelchair. The plaintiff’s doctor also told the employer that the plaintiff’s medication should not affect her work. The employer then requested that the plaintiff fill out a medical authorization form, which she did. The employer also sent a letter to plaintiff’s doctors indicating that the information previously provided was insufficient and incomplete and requested more detailed information about the plaintiff’s medication, the side effects, and any recommendation for restrictions. The employer also sought information as to the length of time plaintiff would be on the medication or in need of a wheelchair. In response to those requests, the plaintiff’s doctor told the employer: that the plaintiff no longer had any slurring of speech; provided the requested list of medications, indicated that she would need a wheelchair to prevent falls for the foreseeable future, that she should not lift over 20 pounds or anything over 10 pounds above her head, and that she should avoid stooping of bending more than five times an hour. At some point, the defendant sent a letter to the plaintiff’s doctors stating that it required a complete release for plaintiff to return to work, a certification that she was free of narcotic medications, and that she could not return to work without that certification. Plaintiff’s employer did not have a “no narcotic,” policy at the workplace apart from plaintiff’s particular situation. Plaintiff brought suit alleging violations of the ADA with respect to both the actual and regarded as prongs.

In denying the employer’s motion for summary judgment, the court reasoned as follows. First, the employer argued that the plaintiff was not disabled under the ADA. Whether this argument could possibly be successful is entirely dependent upon when the actions occurred. If the actions occurred prior to January 1, 2009, the date the amendments to the ADA went into effect, then this argument could be in play. Afterwards, which was the case in this situation, that argument is extraordinarily difficult to pull off, and the defendant could not do so in this case. The plaintiff certainly had a physical impairment (a back problem that necessitated surgery and long-term restrictions after that), and it was one that substantially limited a major life activity as defined by the amendments act.

Second, the plaintiff alleged that the employer regarded her as having a disability and the court found the evidence sufficient to fend off the motion for summary judgment. The key here being how the amendments act changed the paradigm. In particular, a person is regarded as having a physical or mental impairment under the ADA as amended when the employer perceives a physical or mental impairment regardless of whether that impairment limits or is perceived to limit a major life activity.

Third, the defendant argued that the plaintiff was not otherwise qualified (not capable of performing the job with or without reasonable accommodation). The court wasn’t buying it. They found evidence existed that the plaintiff was qualified to perform the essential functions of the job before medications were changed in July and that she was qualified to perform those functions again after the medications were changed again in mid-August. Whether allowing the plaintiff to perform her job while using narcotic medications was a reasonable accommodation, was a justicciable question, especially since the employer did not have an explicit no narcotic policy aside from the plaintiff’s situation.

Fourth, the court found that the plaintiff had offered sufficient evidence to withstand summary judgment by showing evidence that the defendant refused to allow her to return to work until she was narcotic free, even though her doctor’s had indicated that she could function appropriately on the medications that she was on.

Finally, the defendant argued that she was terminated because of her inability to perform the essential functions of her job or because of her refusal to submit to a fitness for duty examination, the latter was disputed by the parties. However, there was no meaningful showing by the employer as to their claims, and so the court said that the plaintiff’s evidence was deemed to be sufficient to show pretext.

Before moving on to breaking it down, the plaintiff also sued for violation of title II of the ADA as well as the FMLA. Suffice to say for purposes of this entry, the court granted the defendant’s motion for summary judgment on those claims.

Breaking it down: There are many things that the employer did right here. For example, it tried to get as much information as it could since it was on notice that the plaintiff seemed to be on narcotics. However, there are things that an employer can take from this. First, an employer might want to consider a no narcotic policy. Second, even if such a policy exists, the employer is going to want to have a mechanism in place so that the policy is flexible if a person is capable of doing the essential functions of the job even while on narcotics. Third, if the employer does have a no narcotic policy and does not want to deal with the issue of an employee working while on narcotics, finding out how long the employee will be on the narcotics and offering leave for that amount of time may be a reasonable accommodation. Fourth, a complete release is always dangerous business for an employer to require. Fifth, an employer is entitled to insist upon a drug-free workplace. Sixth, an employer wants to be aware of other regulations that may be out there that may deal with narcotics in the workplace even where they are legally prescribed. For example, there may be regulations out there that would prohibit an employee from driving machinery while on narcotics, and even if there aren’t, an employer may want to evaluate whether driving was an essential function of his or her job. If so, direct threat would come into play. Finally, the key focus must be on whether the person can do the essential functions of the job with or without reasonable accommodations and not jumping to conclusions.