IN: Federal Court Rules in Favor of Termination of Employee Who Consumed Opioids Prescribed Five Years Before

A federal court based in Indiana has dismissed the claims of disability discrimination and retaliation of a commercial driver who failed a drug test as the result of prescription opioid use. The court held that the failure to provide a Safety Concern Letter or comply with the policies of their employer or the Department of Transportation (DOT) was fatal to the employee’s claims.

In this case, the employee was a driver for a major shipping company and underwent a dental procedure in 2014. This resulted in the employee being prescribed opioid pain medication, and pursuant to regulations from both the employer and DOT, the employee disclosed this prescription to the employer and supplied documentation. The employee was told to take a day off if he needed to take the medication.

According to DOT rules, the driver would need to regularly submit to DOT medical examinations as well as provide notice of any medications that could result in an inability to safely operate a motor vehicle on the employee’s Medical Examination Report Form. However, from 2016 onward, the employee never noted the use of prescription medication.

However, five years after being prescribed the opioid pain medication on March 30th, 2019, the employee chose to consume the medicine. On the following day, the driver underwent a DOT-mandated random drug test, which resulted in a positive test for opioids. Prior to taking the test, the driver informed the medical review officer (MRO) of the prescription.

This MRO informed the employee that they would need to supply a Safety Concern Letter from the prescribing physician. This would include confirmation that the medicine was being administered under the monitoring of a medical provider and that it would not pose a safety concern.

However, the employee could not produce this letter as the prescribing physician had retired since prescribing the medicine, and the practice refused to produce such a letter for medicine prescribed five years prior. Due to failing to provide the necessary documentation, the employee was terminated.

In response, the driver filed a lawsuit against the employer alleging disability discrimination and retaliation under the Americans with Disabilities Act. The defendant moved for summary judgment, arguing that, in part, the failure on the employee’s part to comply with the employer’s drug and alcohol policies precluded such an argument.

The court sided with the defendant finding that the employee had violated policies of both the DOT and employer through failing to provide the necessary documentation and further had failed to make a request for accommodation. The court found that the plaintiff’s claim of retaliation could not be established due to the lack of any protected activity. Namely, because the employee had never disclosed the use of any pain medications on DOT Medical Evaluation Reports in the three years leading up to the dismissal.

As such, the court granted the motion for summary judgment in favor of the employer.

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