A federal court in Utah upheld the termination of an employee who did not disclose his use of prescription medication in accordance with his employer’s policy.  Angel v. Lisbon Valley Mining Co.Case No. 2:14-CV-00733 (D. Utah Nov. 23, 2015).

Angel was employed as a haul truck driver at Lisbon Valley Mining Co., a copper mine. When he interviewed for the job, he was given a copy of the company’s prescription drug policy which he read and signed. The policy provided that employees taking prescription drugs that may impair their ability to safely perform their jobs must inform human resources of the use of such medications, and obtain a release from the company’s occupational physician authorizing the employee to work and specifying any work restrictions before the employee may return to work. The policy further provided that an employee’s failure to disclose that the employee is taking such prescription medications could result in immediate termination.

Approximately two months after his hire, Angel was selected for random drug testing and tested positive for Oxycodone. He stated that he had been taking that medication for about a month, while continuing to work, and without notifying human resources or 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. Angel was terminated for his failure to comply with the company’s policy. The Company routinely discharged all employees who failed to comply with the prescription drug policy.

Angel asserted disability discrimination claims and a retaliation claim under the Americans with Disabilities Act (“ADA”). While he admitted that he never informed the company that he had a disability, he argued that after the positive drug test result, he advised the company that he took Oxycodone for back pain. The Court held that this statement was not enough to put the company on notice that Angel was disabled, and therefore his purported disability could not have been a determining factor in the decision to terminate his employment.

Angel also argued that the company failed to accommodate him by excusing the positive drug test result. The Court noted again that Angel never put the company on notice that he was disabled and never asked for any accommodation. Moreover, the Court observed that reasonable accommodation is always prospective, not retroactive.

Finally, as to Angel’s retaliation claim, the Court held that Angel did not engage in any “protected activity” and could not establish any causal connection between his termination and any alleged protected activity. All of his claims were dismissed.

This case highlights the importance of having a written policy requiring “safety-sensitive” employees (i.e., those with dangerous job duties) to report the use of prescription medications that may impair the ability to perform their job duties safely – before reporting to work while using such medications and before being selected for drug testing. Such reporting triggers an employer’s obligation to engage in the “interactive dialogue” required by the ADA to determine potential reasonable accommodation.  In this case, it was undisputed that the employee was aware of the policy and that he did not comply with it. If the employer did not have such a clear policy that was distributed to all employees — and that permitted it to take disciplinary action for violating the policy — the result may have been different. Employers must be careful, however, not to apply such policies to non-safety-sensitive employees because there is no business justification to do so.