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Volume XI, Number 289

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Court Upholds Termination of Employee Who Used Prescription Medication That Was Prescribed 5 Years Earlier

A federal court in Indiana dismissed the disability discrimination and retaliation claims of a DOT-regulated driver who failed a random drug test due to prescription opioid use, holding that he did not sufficiently adhere to the employer’s policy or DOT regulations when he failed to produce a Safety Concern Letter from the prescribing physician.  Ross v. FedEx Freight, No. 1:20-cv-00642-JMS-MJD (S.D. Ind. September 21, 2021).

The driver was prescribed pain medication in 2014 following a dental procedure.  At that time, pursuant to the employer’s policy and DOT regulations, the driver disclosed the prescription to the employer and provided documentation of the prescription.  The driver then was instructed to take a day off from work if he needed to take the pain medication.

DOT regulations also required that the driver regularly undergo DOT medical examinations and disclose, by way of Medical Examination Report Forms, the use of any medications which could negatively impact his ability to safely operate a vehicle.  Between 2016 and the time of his termination, the driver did not disclose the use of any prescription medication on his DOT Medical Examination Report Forms.

On March 30, 2019, the driver took the pain medication that was prescribed to him five years earlier.  The next day, on April 1, 2019, he tested positive for opioid use on a DOT-required random drug test.  Prior to taking the test, the driver disclosed to the medical review officer (“MRO”) that he had taken pain medication prescribed to him in 2014.  Pursuant to the employer’s policy and DOT regulations, the MRO directed the driver to provide a Safety Concern Letter from the driver’s prescribing physician which, among other things, would confirm that the medication should not pose a safety risk and that the driver’s use of the medication was being monitored by a medical professional.  However, the driver’s prescribing physician had since retired and physicians who continued to work in the practice would not provide such a letter because the medication was prescribed five years earlier.  As a result of the driver’s failure to provide the necessary documentation to support his use of a controlled substance, the employer terminated the driver.

In February 2020, the driver filed a federal action for, among other things, retaliation, disability discrimination, and failure to accommodate under the Americans With Disabilities Act, 42 U.S.C. § 12112, et seq.  The employer moved for summary judgement on all claims, arguing that the driver could not establish a prima facie case for disability or retaliation because, in part, the employee failed to adhere to the employer’s drug and alcohol testing policy.

The Court agreed with the employer, noting that the driver violated the employer’s policy and DOT regulations by “failing to provide a Safety Concern Letter addressing his use of the five-year-old prescription for opioids.”  Moreover, the driver never made any specific request for an accommodation.  With regard to the retaliation claim, the Court concluded that the driver could not establish that he engaged in any protected activity because he failed to disclose his use of pain medication on his DOT Medical Evaluation Report Forms for at least the prior three years.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 267
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About this Author

Stacey J. Lococo Employment Attorney Jackson Lewis New York
Associate

Stacey J. Lococo is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including pre-litigation claims, litigation, and preventative advice and counseling.

A trained social worker, Ms. Lococo earned her master’s degree in nonprofit management and administration from Rutgers University and worked for a variety of nonprofit organizations in both fundraising and administrative capacities for seven years. Ms. Lococo’s work with diverse...

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