Does Your Business Have to Hire a Forklift Driver that Takes Opioids and Adderall?

February 9, 2022

We will not bury the lead. Of course, not. However, your business better conduct an individualized assessment of the applicant, or it may find itself in a protracted battle in federal court under the Americans with Disabilities Act ("ADA"). In a recent case decided in Ohio, Hartmann v. Graham Packaging Co., Case No. 1:19 -cv-488 (Jan. 25, 2022, S.D. Ohio) a federal court declined to enter summary judgment on behalf of a packaging company that refused to hire a job applicant who was taking oxycodone for chronic pain. The employer did almost everything right but now it will have to win a jury trial or settle.

1. The Facts in Hartmann.

Raymond Hartmann takes prescription opioids for persistent pain from a pinched nerve. He applied for a position at Defendant Graham Packaging Company, L.P. that required him to operate a forklift. Graham asked Hartmann to provide a doctor's note confirming that his medications, which also included Adderall, would not create safety concerns. Hartmann submitted three doctor's notes over the process of several months during which his employment was being considered.

Graham chose not to hire Hartmann based on safety concerns. It did not think it was wise to allow an employee who takes opioids to drive a forklift. Hartmann sued Graham under the ADA saying that he was qualified to drive the forklift, and the real reason that he was denied employment was because Graham "regarded him" as disabled. The judge decided that the case was "too close to call," denied summary judgment, and will now allow a jury to decide the issue.

2. Graham Says It Did Not Know About a Disability – To No Avail.

Graham first argued to the court that it could not be found liable under the ADA for disability discrimination because it was not aware of any disability suffered by Hartmann. The court dismissed this argument and said that Hartmann was protected under the ADA because Graham "regarded him as disabled." The Court held that based on the ADA's regulations and case law, the negative side effects of medicine or other medical treatment can constitute an impairment for purposes of the ADA.

Graham tried to rebut the court's analysis by referring to the Sulima doctrine which holds that a plaintiff must prove that "there must not be an available alternative medical regimen that is equally efficacious that lacks similarly disabling side effects." Put succinctly, Graham argued that Hartmann never proved that the best and only remedy for his chronic pain was oxycodone. The court held that in the Sixth Circuit: Ohio, Michigan, Kentucky, and Tennessee, the Sulima test did not apply.

3. Graham Said that Hartmann Could Not Drive a Forklift While Taking Oxycodone – To No Avail.

The heart of this case was Graham's second argument that Hartmann was not qualified to drive a forklift because he represented a risk to the "health and safety of others." The court condescended to Graham that it "starts on [solid] legal footing" but went on to say that because Graham did not conduct an "individualized inquiry" of Hartmann's situation, it would not conclude as a matter of law that Hartmann was unqualified.

Graham argued strenuously that it did conduct an individualized assessment and pointed to three things. First, Graham showed the court that it reached out to Mercy Health, the medical institution that drug-tested Hartmann in the pre-hire process, and Mercy Health said that "other employers would not [hire Hartmann]" but Graham would need to make its own decision.

The court was unimpressed by Graham's "reach-out" to Mercy Health. It said it did not satisfy the individualized inquiry because Mercy declined to state whether Hartmann's medication regimen was disqualifying.

Second, Graham argued that it asked Hartmann for three different letters from his medical providers. Again, the court was unimpressed and said that if the letters proved anything, they proved that Hartmann could do the job safely.

Third, Graham pointed to the fact that it held extensive conversations internally about the safety of hiring Hartmann. Put another way, Graham argued that it did not make a rash decision but instead sought the input of every human resource professional in the company. The court was sympathetic to this argument but said the following, "The record does not reveal, however, how thorough these conversations were, whether they considered Hartmann's individualized ability to perform the role of a Production Specialist in light of the direct-threat factors, and what evidence Graham relied upon in reaching its conclusion.

Employer Takeaways

Summary judgment is always the goal in any employment litigation. If the action your company takes cannot win summary judgment – then the lawyer who advised the company or the HR professional has failed. In order to win summary judgment in the Hartmann case, someone from Graham should have obtained a written document from a doctor or occupational therapist. That document would have set forth: 1) Hartmann's name, 2) the drugs he was taking, and an opinion that 3) given the type of drugs he was taking, and his dosage, he should not operate a forklift. An individualized medical exam, paid for by Hartmann, would have produced that result.

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