In a case that addresses the ADA’s “regarded as disabled” provision, the 6th U.S. Circuit Court of Appeals found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employee’s FMLA retaliation claim to go forward to trial, based upon a manager’s statements related to the same employee’s medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787 (6th Circ. Oct. 16, 2008).
James Daugherty worked for Sajar Plastics as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery including forklifts and overhead cranes.
In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage pain associated with those flare ups, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested and was granted intermittent FMLA leave during period of increased pain. In November 2003, Daugherty requested a lengthy period of such leave, and provided a doctor’s note that he would be able to return to work in January 2004. Daugherty claims that Sajar’s HR Director (Alexander) told him at that time that if he took FMLA leave for that period, “there would not be a job waiting for [him] when [he] returned.” Alexander disputes that claim.
Soon after Daugherty went on leave, Sajar began a round of lay offs. Because Dougherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from leave. However, within a month, Sajar experienced an increase in business and decided to recall Daugherty to work. Alexander made the re-hire contingent upon passing a physical examination conducted by Dr. Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Dougherty physically able to perform the functions of the position, he expressed concerns about Dougherty’s medications, stating that “the analgesics may mask the symptoms of re-injury,” and “may cause am impairment of perception or judgment which might lead to an injury to himself or others.” Sajar then called Daugherty and told him that if he could provide documentation regarding a “reduction in his medications,” the company would consider re-employing him. Dougherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated.
Daugherty then filed a lawsuit alleging that Sajar regarded him as disabled and that it violated the ADA when it failed to rehire him. He also claimed that his termination was in retaliation for his FMLA leave. The lower court granted Sajar’s motion for summary judgment on both claims, and Daugherty appealed.
On appeal, the Sixth Circuit found that Sajar’s decision regarding Daugherty’s employment did not violate the ADA. To support a regarded-as-disabled claim, a plaintiff must show that the employer regards him as unable to perform a broad class or range of jobs. Dr. Altemus’ viewpoint regarding Dougherty’s medication restricted Dougherty only from the maintenance technician positions at Sajar and, therefore, was not sufficient to support his ADA regarded-as-disabled claim. However, the court reversed the lower court’s dismissal of Dougherty’s FMLA claim. The court held that Dougherty presented “direct evidence” of discrimination in the form of Alexander’s threat that the FMLA leave would affect Dougherty’s continued employment, and that a jury could find a “clear connection” between the FMLA leave and Sajar’s ultimate decision to terminate Dougherty’s employment.
As the number of cases filed under the “regarded as” provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim. In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Dougherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Dougherty from a broad range of employment positions. In this case, the company’s effort to find a mutually beneficial resolution to the issue – while unsuccessful – had the ultimate effect of helping the company to avoid liability under the ADA.