January 25, 2022

What ELSE Happens When We Assume: ADA’s Perception Provision

An applicant provides a note from his doctor regarding his prescribed use of opioids.  The note addressed the candidate’s perceptions that he was not adversely impacted by the medications. The note did not give the doctor’s opinion as to the candidate’s ability to safely operate heavy equipment.  The employer asked for more information but did not specify what information it sought. After providing two more notes that still failed to provide the doctor’s medical opinion, the employer advised the candidate that he posed a safety risk and they would not be hiring him.

The court found the employer may have violated the ADA by making an employment decision based on “misgivings” aka perceptions about the effect the candidate’s use of prescribed opioids would have on his ability to safety operate heavy equipment.

Lessons Learned:

Document, document, document. The employer and candidate agree they had several conversations about what the medical documentation needed to say. The problem was, they did not agree on what those conversations were. If the employer had issued a written notice describing what information or level of detail it needed, the outcome might have been different.

It’s About What You Know, Not What You Don’t Know. The parties agreed the employer had no knowledge of the candidate’s underlying medical condition, only that he took opioids for pain. Thus, the employer argued that it could not have perceived the candidate as an individual with a disability.  The court reminded us, “the negative side effects of medicine or other medical treatment can constitute an impairment for purposes of the ADA.”

Even HR Does Not Always Get it Right. The good news is one hiring manager contacted HR for guidance after talking to two other hiring managers. The Regional HR Director recommended they not hire the candidate because he posed a safety risk. (Oops)