Relying upon advice from a physician could cause employers to unintentionally commit disability discrimination in violation of the Americans with Disabilities Act (ADA). The ADA permits employers to terminate employees with a disability if those employees represent a “direct threat” to the safety of themselves or others. Employers frequently rely upon doctors to determine if the employee represents a “direct threat.” One federal judge in Alabama has found that reliance upon a doctor’s opinion on the “direct threat” issue can be discrimination. See Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).
In Pollard, Mr. Pollard worked in a coal mine and injured a finger on-the-job. He was sent to an in-house physician for treatment of the finger injury and disclosed to the physician that he was taking a prescribed narcotic, methadone, for back pain. Based upon that narcotic prescription, the in-house physician found that Mr. Pollard represented a “direct threat” to himself or others working with heavy machinery in the mine. Mr. Pollard then used the terms of a collective-bargaining agreement to obtain review by an independent physician. That second physician examined Mr. Pollard and also concluded that he represented a “direct threat” to himself or others.
Despite opinions from those two physicians, Judge Madeline Hughes Haikala found issues requiring a jury trial on whether Drummond Coal Company committed disability discrimination. The “direct threat” defense must be based upon “an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Judge Haikala’s opinion hinged on two crucial legal findings. First, “[a]n employer may not rely upon the recommendation of a physician who, like [the company doctor], conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations.” Pollard, 2015 WL 5306084 at *7. Additionally, “an assessment based on the known possible side effects of medication, as opposed to an individualized inquiry into a patient’s present ability to perform his functions, is insufficient.” Id. Based upon those legal findings, as well as the fact that Mr. Pollard apparently performed his job for three years without any manifestation of side effects, Judge Haikala refused to dismiss the case based upon the “direct threat” defense.
The Pollard opinion is a difficult one for employers who rely upon physicians when making fitness-for-duty determinations. Practically, Pollard forces employers to interject themselves into determinations made by health care professionals. Employers cannot simply rely upon a doctor’s opinion regarding an employee’s ability to work. Instead, Pollard effectively requires employers to second-guess physicians with questions like: (1) Did you conduct an extensive examination of this patient?; (2) Did you base your opinion on general assumptions about patients with the same condition?; (3) Did you base your opinion on an individualized inquiry into this patient’s present ability to perform the functions of his job? Moreover, what happens if an employer asks the physician those kinds of questions, and the physician misrepresents the extent of his examination?
Unquestionably, Pollard requires employers to proceed cautiously when making employment decisions based upon a physician’s opinion.