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Friday, March 4, 2016

Prescription for Disaster

By: Thomas Eden

Kevin Lee Angel worked for Lisbon Valley Mining Co. LLC, a copper mine in San Juan County, Utah, as a haul truck driver, a safety-sensitive position.  While interviewing for the job, Angel was told about Lisbon Valley's prescription drug policy and was given a document setting forth the terms of the policy, which he read and signed.

The prescription drug policy provided that employees taking prescription drugs that may impair their ability to safely perform their job must inform human resources of the use of such medication, provide human resources with a copy of the prescription for any such medication, and obtain a release from Lisbon Valley's occupational physician authorizing the employee to work and specifying any work restrictions that must be followed, before the employee may return to work.  The policy further stated that an employee's failure to disclose that the employee is taking prescription medication could result in immediate termination, according to the finding in a recent federal court lawsuit.

On January 12, 2012, while undergoing a random drug test, Angel tested positive for oxycodone, and was placed on administrative leave.   Lisbon Valley learned from Angel that he had obtained a prescription for oxycodone in December 2011, and that he had been taking the medication, while continuing to work, without notifying human resources, presenting a copy of the prescription to human resources, or obtaining a work release from the company's occupational physician, all in violation of the prescription drug policy.  

At no time while he was employed by Lisbon Valley did Angel ever tell Lisbon Valley that he had a disability, nor did he ever ask Lisbon Valley for an accommodation for a disability or inform Lisbon Valley that he needed an accommodation for a disability.

On January 19, 2012, Lisbon Valley notified Angel that he had been terminated because of his violation of the company's pre-duty prescription medication disclosure policy. Lisbon Valley had terminated the employment of every other safety-sensitive employee who it had learned violated the company's prescription drug policy.
Angel then filed an EEOC Charge, for which a no cause finding was issued, and then filled a lawsuit in Utah Federal District Court for disability discrimination, failure to provide reasonable accommodation, and retaliation in violation of the Americans with Disabilities Act of 1990 ("ADA"). In dismissing Angel’s case the Judge found, “Because the undisputed evidence establishes that Lisbon Valley did not know that Angel claimed to have a disability prior to his termination, Angel's alleged disability could not have been a determining factor in Lisbon Valley's decision to terminate his employment.  As a result, Angel cannot establish his prima facie case of discriminatory discharge.”

Angel also argued that the company failed to accommodate him by excusing the positive drug test result. The Court observed that reasonable accommodation is always prospective, not retroactive.

Common Sense Counsel: Abuse of prescription medications by safety sensitive employees is a nationwide epidemic with impairing effects just as dangerous as illegal drugs. Having the correct drug testing policy sign-off language is a critical first step to having a successful outcome.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901.