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Employer short on direct threat defense September 17, 2015

scholasticnews_indepth_images_minerThe district court in Pollard v. Drummond Co., Inc., No. 12-03948 N.D. Al. (Sept. 15, 105) found a fact question on whether a coal miner using methadone to control back pain was a direct threat under the ADA. A “direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron, 536 U.S. at 86. An employer may reasonably rely on medical evidence to make its employment decisions, but this reliance must “be reasonably based on particularized facts.” Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001). An employer may not rely upon the recommendation of a physician who 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. Lowe, 244 F.3d at 1309 (denying summary judgment where a physician recommended restrictions for a double amputee based on a cursory examination of him and a general assumption that all double amputees have the same limitations). Furthermore, an assessment based on the known possible side effects of a medication, as opposed to an individualized inquiry into a patient’s present ability to perform his job functions, is insufficient. Haynes v. City of Montgomery, No. 2:06-CV-1093-WKW, 2008 WL 4495711, at *4-5 (M.D. Ala. Oct. 6, 2008). The employer’s doctors could only speculate about the effects and side-effects of the methadone. They did not perform an individualized assessment of the employee. Moreover, the employee had worked for many years using methadone in the mines and had no significant infractions or safety issues during that time.

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