It is not unusual for employees returning to work after a medical absence to be taking prescription medications related to their health conditions. In some cases, the employer will know about the medication; in other cases, prescription medication use comes to light as a result of job performance issues or other events. At that point, the employer finds itself in a complicated situation. Can I investigate what medication the employee is taking and the medication’s potential effects? What do I do about safety concerns? How about the impact prescriptions may have on an employee’s work performance?
As a Norman, Oklahoma, employer recently learned, there is another issue that sometimes gets missed in the shuffle: Should I consider allowing an employee to continue working while taking medication as an accommodation under the Americans with Disabilities Act?
Post-Surgery for a
Cleveland County Employee
Etta Holmes worked for Cleveland County as a deputy county clerk beginning in 2006. Her primary duties included sitting, typing and data entry. County Clerk Tammy Belinson supervised Holmes.
In 2008, Holmes first underwent back surgery. When she returned to work, her doctor imposed a 30-pound lifting restriction. She also regularly used a cane or walker at work.
In July 2010, Holmes’ doctor changed her post-surgical medication, and the effect was noticeable at work. Her speech was slurred, and her co-workers described her as being “out of it.”
August 16, 2010, was the last day Holmes worked. Two days later, the county clerk received a note from Holmes’ doctor asking that she be excused from work until August 25 for medical reasons. When Holmes called Belinson on August 23rd, she again exhibited slurred speech and sounded intoxicated. On August 24, Belinson received a second note from Holmes’ doctor explaining she was under his care and could return to work on August 30 with a five-pound lifting restriction and the use of a wheelchair. This note informed the employer that the medication should not affect Holmes’ work for the county.
In an August 30 meeting with Holmes, Belinson obtained a medical authorization form signed by Holmes, which was forwarded to the employee’s doctor. The letter to Holmes’ doctor requested additional information about her medication, the medication’s side effects, and the length of time Holmes would be on the medication. The employer’s letter also asked the doctor about recommendations or restrictions. Holmes’ doctor responded to the county clerk that the employee’s pain medication had been discontinued, she was currently able to do her job, and that Holmes was no longer exhibiting any slurred speech. The doctor also provided Belinson with the requested list of medications and indicated Holmes would need a wheelchair to prevent falls, should not lift over 20 pounds, and should avoid stooping or bending more than five times an hour.
Despite the letter from the doctor, the county clerk’s office asked Holmes’ doctor for a complete release that would certify Holmes was free of narcotic medication, noting that the deputy county clerk could not return to work without a “complete release.” Her office put Holmes on unpaid administrative leave retroactively to August 17, 2010. Approximately nine months later – on May 1, 2011 – Holmes’ employment was terminated.
Disability and Accommodation
Holmes filed a lawsuit in federal court in Oklahoma City complaining, among other things, that the Cleveland County clerk had violated the Americans with Disabilities Act and the Oklahoma Anti-Discrimination Act through its treatment and ultimate termination of her employment. In a May 28, 2013 order, the federal court ruled a jury will decide Holmes’ claims against her employer.
The 2008 amendments to the ADA lowered the standards for what constitutes a “disability.” Because Holmes plainly had difficulties lifting, walking, bending and sleeping, she was found to be “disabled” both for purposes of the ADA and Oklahoma’s disability law. The court further noted that under the ADA, the county clerk’s office had regarded Holmes as “disabled” by placing her on involuntary leave retroactive to August 17, 2010.
In deciding that Holmes’ claims should go to trial, the federal court questioned the employer’s refusal to allow Holmes to return to work until she was “narcotic free.” First, the court was critical of any across-the-board policy that would prevent an employee from returning to work if they were taking narcotic medications. At least considering the possibility that an employee could return to some jobs while taking some narcotic medication was viewed by the court as a possible accommodation. Second, the court did not like the idea the county clerk ignored the doctor’s statement Holmes was capable of performing her job and functioning appropriately on her medications.
If an employer has reasonable concerns about an employee working while taking prescription medication, the employer is entitled to look into legitimate issues such as workplace safety and/or job performance problems. Across-the-board rules automatically prohibiting working while on medication should be avoided. Whether and how an employee continues to work while taking any medication should be decided on a case-by-case basis, depending on the specific medications at issue, its effects, and the employee’s particular work responsibilities. Get information from the prescribing physician about a particular medication, its potential effects, and any recommendations about limitations or complications at work from the medication. An employer is entitled to rely upon such medical information when making a decision about returning to work. Don’t ignore that advice by the physician. And remember this investigation and resulting information is personal health information, which must be kept confidential.
» Case: Holmes v. Cleveland County Board of Commissioners, CIV-11-0397 (W.D. Okla. 5/28/13)