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How to handle employees on medication

published in Oklahoma Employment Law Letter | August 1, 2013

By Charles S. Plumb

It isn’t unusual for employees returning to work after a medical absence to be taking prescription medication related to their health condition. In some cases, you will know about the medication. In other cases, prescription medication use comes to light because of events or job performance issues. At that point, you find yourself in a complicated situation. Can you investigate what medication the employee is taking and its potential effects? What do you do about safety concerns? How about the effect prescriptions may have on the employee’s work performance?

As a Norman employer recently learned, there is another issue that sometimes gets missed in the shuffle: Should you consider allowing an employee to continue working while taking medication as an accommodation under the Americans with Disabilities Act (ADA)?

Postsurgery 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 underwent back surgery. When she returned to work, her doctor imposed a 30-pound lifting restriction. She regularly used a cane or walker at work.

In July 2010, Holmes’ doctor changed her postsurgical medication, and the effect was noticeable at work. Her speech was slurred, and her coworkers described her as being “out of it.”

August 16, 2010, was the last day Holmes worked. Two days later, Belinson received a note from Holmes’ doctor asking that she be excused from work until August 25 for medical reasons. On August 23, Holmes called Belinson. In that conversation, 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. The note informed the employer that the medication shouldn’t affect Holmes’ work for the county.

In an August 30 meeting, Belinson had Holmes sign a medical authorization form, which she forwarded to Holmes’ doctor. The letter to the doctor requested additional information about her medication, the medication’s side effects, and the length of time she would be on the medication. The letter also asked the doctor about recommendations or restrictions.

Holmes’ doctor responded that her pain medication had been discontinued, she was currently able to do her job, and she no longer was 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, shouldn’t 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 him for a complete release that would certify that Holmes was free of narcotic medication. Belinson said Holmes couldn’t return to work without a “complete release.” The county clerk’s office put Holmes on unpaid administrative leave retroactively to August 17, 2010. Approximately nine months later?May 1, 2011?her employment was terminated.

Disability and accommodation

Holmes filed a lawsuit in Oklahoma City’s federal court complaining that, among other things, the county clerk’s office had violated the ADA and the Oklahoma Anti-Discrimination Act through its treatment and ultimate termination of her employment. In a May 28, 2013, order, the court ruled that a jury will decide her claims.

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” for purposes of both 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 Holmes’ claims should go to trial, the Oklahoma City federal court questioned the employer’s refusal to allow her 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 she is taking narcotic medications. The court thought the employer should at least consider the possibility that the employee could return to some jobs while taking narcotic medication as a possible accommodation.

Second, the court didn’t like the idea the county clerk ignored the doctor’s statement that Holmes was capable of performing her job and functioning appropriately on her medications. Holmes v. Cleveland County Board of Commissioners, CIV-11-0397 (W.D. Okla., 5/28/13).

Takeaway points

If you have reasonable concerns about an employee working while taking prescription medication, you’re 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 medication should be decided on a case-by-case basis, depending on the specific medication at issue, its effects, and the employee’s particular work responsibilities.

Get information from the prescribing physician about a particular medication and its potential effects and any recommendations about limitations or complications at work. You are entitled to rely on such medical information when making a decision about returning an employee to work. Don’t ignore that advice by the physician. And remember that this investigation and resulting information is personal health information, which must be kept confidential.