Sunday, November 15, 2015

In the last three years, the Equal Employment Opportunity Commission has filed numerous lawsuits against employers who take adverse actions against applicants and employees who use prescription medications. In accordance with that trend, EEOC filed suit on November 3, 2015 against an employer who purportedly refused to hire a recovering drug addict using methadone, alleging violations of the Americans with Disabilities Act (“ADA”). EEOC v. Randstad, US, LP, 1:15-cv-03354 (D. MD. Nov. 3, 2015).

EEOC alleges that April Cox is a recovering heroin addict who has been enrolled in a supervised methadone treatment program since at least 2011. She undergoes monthly counseling and urine drug testing and is using methadone as part of her treatment. In January 2015, Cox applied for a job as a production laborer. When she was asked to submit to a pre-employment drug test, Cox disclosed that she was in a methadone treatment program and could provide proof of treatment if necessary. A manager stated that “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” Cox subsequently provided the employer with information from her treatment clinic confirming that she had no restrictions other than that she could not work as a truck driver or airline pilot. Cox never was asked to take the drug test and was not hired, due to her use of methadone.

EEOC alleges ADA violations as follows: (1) Cox is disabled because she is a recovering substance abuser; (2) Cox has a record of a disability; and, (3) Cox was “regarded as” having a disability based on her methadone use. EEOC seeks injunctive relief, back pay, pain and suffering, and punitive damages, among other things.

This is not the first time that the EEOC has commenced litigation on behalf of methadone users. According to the EEOC’s website:

In 2012, EEOC settled a lawsuit for $37,500 in which it alleged that an employer refused to hire an applicant who used methadone; and,

In 2011, EEOC settled a lawsuit for $85,000 in which it alleged that an employer refused to hire an applicant due to his use of methadone and without conducting an “individualized assessment” to determine whether the applicant could perform the job safely.

Additionally, EEOC has obtained settlements on behalf of individuals using other types of prescription medications:

April 2015 — $59,000 settlement of suit alleging that an employer terminated an employee for using prescription medications to treat chronic pain;

2013 — $50,000 settlement of suit alleging that an employer fired an employee for taking bipolar medication;

2013 — $25,000 settlement of suit alleging that an employer asked applicants whether they were taking any medications and to identify those medications;

2012 — $750,000 settlement of suit alleging that an employer drug tested employees for prescription medications and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications adversely affected the employees’ job performances;

2012 –$146,000 settlement of suit alleging that an employer refused to hire applicants and placed employees on leave due to the use of prescribed narcotic medications;

2012 — $80,000 settlement of suit alleging that an employer refused to hire an applicant due to her use of prescribed medication for epilepsy; and,

2010 — $32,500 settlement of suit alleging that an employer refused to hire an applicant due to the applicant’s use of prescription medication.

Employers should be careful not to discriminate against applicants or employees who use prescription drugs such as methadone to treat their heroin addiction (as well as other prescription medications for other medical conditions). Instead, employers should consider on a case-by-case basis whether the applicant or employee can perform the essential functions of the job with or without a reasonable accommodation and without posing a direct threat of harm to themselves or others in the workplace. In addition, employers who drug test for prescription medications must ensure review of positive drug test results by a Medical Review Officer and take steps to ensure that they do not take adverse employment actions based on incorrect or stereotyped assumptions about certain types of drugs.