In the two previous editions on this series of managing employees in the wake of widespread opioid abuse, we have addressed opioid abuse largely in the context of the illegal use of opioids either in (a) an employee's use of the drugs in excess of doses prescribed by a doctor, or (b) an employee's use of the drugs without a doctor's prescription. This installment, however, examines an issue that's become more common with doctors increasingly prescribing opioids for pain management: how to deal with the potentially dangerous side effects of legal opioid use in the manufacturing workplace given manufacturers' responsibilities under the Americans with Disabilities Act (ADA). As shown more fully below, the ADA's medical inquiry and direct threat provisions provide manufacturers with tools on how to manage such a situation.
The Hypothetical
As discussed in our first installment, side effects of opioid use include appearing sedated or confused, having difficulty concentrating and demonstrating poor judgment. This can often have disastrous effects in the workplace. For example, take the following hypothetical:
An employee working the line and responsible for operating a large crane begins alarming co-workers as she consistently appears sedated and drowsy, and ultimately stops working mid-shift after she complains about getting migraines and being dizzy. Given her demonstrated behavior and rumors around the floor, the company suspects that she is taking opioids to manage her headaches. Her supervisor is concerned that she might cause an accident by, for example, falling asleep while operating the crane and causing it to drop heavy equipment on people working close to the line such that her co-workers could suffer serious injuries, but the head of human resources is worried that firing her may violate the ADA.
What should the manufacturer do?
The ADA's Restrictions
The head of human resources is right to worry, as there would be a significant legal risk in terminating the employee. This is because the ADA, among other things, prohibits employees from taking employment decisions against employees because (a) the employee is disabled; or (b) the employer regards the employee as disabled. Further, the 2008 amendments to the ADA greatly expanded the definition of disability. Here, there could be a risk that (i) the employee's migraines and/or another condition requiring opioid use qualifies as a disability; and/or (ii) the manufacturer's suspicions regarding the same could rise to the level of ADA protected "regarded as" status. As such, the employee should not, without taking additional steps, terminate her employment.
The ADA's Tools: The Direct Threat Inquiry
Fortunately, the ADA not only restricts employers, but also provides them with tools for managing the workplace. Specifically, the ADA permits employers to take employment decisions against someone who is disabled or perceived to be disabled to the extent that the employee poses a "direct threat" to the safety of coworkers. In making this direct threat assessment, employers should be aware that the assessment must be made on an individualized basis. Further, that the assessment should address, at a minimum, the:
- Duration of the risk the employee presents;
- The nature and severity of the potential harm associated with that risk;
- The likelihood that harm will occur; and
- How imminent that harm is.
Moreover, the assessment may include inquiries into a plaintiff's medical condition. Finally, if the assessment results in a finding that the person constitutes a direct threat, the employer is still obligated to engage in the interactive process to see if any reasonable accommodations exist to retain the employee in a manner that does not constitute a direct threat.
A handful of cases have applied the direct threat analysis in the opioid use context and can provide guidance on the hypothetical presented here. Specifically, these cases indicate that a manufacturer facing such a situation may consider asking the employee demonstrating unsafe symptoms of opioid use if she is currently taking any prescription medication that might impact her ability to perform the essential functions of her job. Further, to the extent she says yes, the manufacturer may consider communicating with the doctor to get their medical opinion on:
- Whether the employee can perform the essential functions of her job at all;
- Whether any reasonable accommodations are necessary to do so;
- Whether the employee's use of prescription opioids could, in her current position, constitute a direct threat to the safety of her coworkers; and
- Whether any limitations are necessary to cabin that risk.
On a practical front, the ADA's direct threat analysis can be sharpened by paying particular attention to the individualized assessment the ADA requires. For example, here, instead of simply asking a doctor whether an employee can perform the essential functions of her job and/or whether an employee is a direct threat, a manufacturer should consider:
- Providing the doctor with a job description laying out the essential functions of a crane operator's job; and
- Informing the doctor of the workplace risks associated with and the harms that could result from an employee failing to perform or negligently performing her job as a crane operator.
On a legal front, manufacturers should be aware that case law has also shed light on how not to conduct the direct threat assessments. Based on these cases, manufacturers should shy away from making broad assumptions about all prescription medication users regarding the side effects they'll demonstrate and the threat they may pose to the workplace. Likewise, manufacturers should not ignore individualized doctor's reports that contradict those broad assumptions.
Key Take Aways
Manufacturers can and must respond to the opioid epidemic as it undoubtedly has and will continue to affect the workforce. In doing so, manufacturers should not only spot the illegal use of opioids but also the legal use of opioids potentially involving side effects that are detrimental to the workplace. Further, manufacturers must be cognizant of the employer conduct permitted by and restricted by the ADA. Specifically, manufacturers should remember that they strictly:
Honore N. Hishamunda, Associate and Employment Lawyer at Burr & Forman - Should not implement broad policies terminating any and all employees who are taking opioids as prescribed;
- Should make individualized direct threat assessments any time employees' opioid use includes side effects which may constitute a direct threat to workplace safety;
- Should not assume that doctors are familiar with the workplace;
- Should give doctors information about the workplace - including job descriptions and workplace risks associated with the same - to allow them to give useful direct threat assessments; and
- Should not make employment decisions based on a direct threat without first engaging in the interactive process to see if any reasonable accommodations are available.
With these principles in mind, manufacturers can go a long way towards successfully navigating the workplace effects of the opioid epidemic.Honore N. Hishamunda is an associate and employment lawyer at Burr & Forman (Atlanta). He advises employers and human resource professionals on a wide range of employment law issues including wage and hour, reductions in force, government contracts, work authorization and background checks, and employment and independent contractor classification. He may be reached at (404) 685-4314 or by email at [email protected].
