Plaintiff Raymond Hartmann applied for a position with Defendant Graham Packaging Company, L.P. ("Graham") in October, 2017. Job requirements for the position included operating a forklift. Plaintiff met with management at Graham, toured the facility and completed an application. During the initial interview, Plaintiff disclosed his use of narcotics and, as requested by Graham, provided a note from his physician (dated July, 2017) which stated that the use of his medications would not create a safety concern. Graham offered Plaintiff the job contingent on passing a pre-employment physical and drug screen.

Plaintiff submitted to the physical and the drug screening which was negative; however, "safety sensitive" was handwritten on the side of the report by the testing facility. The Defendant's HR department requested a new letter from the Plaintiff's doctor which Plaintiff did supply. This letter was identical to the first but was dated November 17, 2021. According to the complaint, Graham's HR department ultimately advised against hiring Plaintiff because his medication presented a safety concern.

As a result, Plaintiff sued Graham under the Americans with Disabilities Act ("ADA") in July, 2019, claiming that the company had engaged in discrimination on the basis of his disability. The parties cross-moved for summary judgment in March of 2021. The court heard arguments on Motions for Summary Judgment in November of 2021 and recently denied both Graham's Motion for Summary Judgment and Plaintiff's Motion for Partial Summary Judgment.

In addressing the cross-motions for summary judgment, the court first assessed whether medication side effects constitute a disability. The court cited an EEOC regulation and found that the negative side effects of medicine/medical treatment can constitute an impairment for purposes of the ADA. Here, Defendant withdrew the job offer because it believed the side effects of Plaintiff's medication rendered him unable to safely operate a forklift, sufficiently demonstrating that the Defendant regarded him as disabled.

As to the point of individualized inquiry, evidence was presented that Plaintiff held a similar job operating a forklift at another company while taking the same medications and apparently had no safety incidents. However, Graham's contention was that the opioid regimen could compromise the health and safety of others. To this point, the court noted that it was not clear whether the employer conducted an "individualized inquiry" to assess whether the Plaintiff's disability disqualified him from the position. As such, the court's denied summary judgment.

Employers are encouraged to periodically review the terms of the ADA as well as regulations issued by the EEOC to determine how hiring practices may be impacted as it relates to drug testing and prescribed medications. Employers are also reminded to implement and review internal drug testing policies and designations of safety sensitive positions.

Posted: February 8, 2022