A federal court in Ohio recently denied summary judgment to an employer who refused to hire an applicant for a forklift driving position who used prescription opioid medication. The court determined that there were fact issues regarding whether the employer properly engaged in the interactive process and whether the applicant’s opioid use rendered him unsafe to perform the job.
The applicant disclosed his use of prescription opioid pain during his initial interview and provided a physician’s note that his medications would not create a safety concern. The applicant subsequently passed the pre-employment drug test, but the test result was marked “safety-sensitive.” In response, the employer requested another physician’s note, which the applicant provided. After some further conversations with the applicant the employer declined to hire him because his medications were a “safety hazard.”
The applicant asserted claims under the Americans with Disabilities Act claiming that he was “regarded as” disabled by the employer. The employer argued that it was unaware of the applicant’s disability; and that it was only aware of the medications he used but admitted that it did not hire the applicant because it believed that the side effects of his medications rendered him unsafe to operate a forklift.
The Court held that it was not clear that the employer conducted an “individualized inquiry” concerning the applicant’s ability to safely perform the duties of a forklift driver. The employer’s notes regarding the interactive process and its internal decision-making were vague at best. In addition, the employer and the applicant disagreed about whether the employer had requested additional, more specific, documentation from the applicant’s physician. As a result of the disputed issues of fact, the Court denied summary judgment.
Had the employer retained better documentation concerning the interactive process: what it requested from the applicant and when, and what if anything the applicant provided in response, it may have been able to have the case dismissed on summary judgment. As I have said many times before, in the HR arena, if you don’t document it, you didn’t do it.