Use of narcotics for chronic pain disqualified employee for safety sensitive job

By Stacey Mark
July 20, 2006

The federal district court in Dvorak v. Clean Water Services recently exonerated an Oregon employer for terminating an employee who was taking narcotics for chronic pain.  Dvorak had been performing a physically demanding and safety sensitive job that involved the operation of heavy equipment, working in areas of heavy traffic, and working over open manholes.  He requested a meeting with Human Resources to discuss the possibility of using medical marijuana instead of his current prescription medications, which his doctor said were damaging his liver and kidneys.  Although Dvorak had done his job without incident for years, an examining physician concluded that he could not continue to take his current medications or medical marijuana without at least a potential risk of danger to himself or others.  A subsequent physician who examined Dvorak opined that he was not a candidate for medical marijuana and his increasing use of narcotics presented an unacceptable risk for performing any safety sensitive job.  When Dvorak refused to enter a drug rehabilitation program designed to get him on an alternate form of pain management, he was fired. 

Dvorak sued, claiming state and federal disability discrimination based on actual, perceived, and a record of having a disability.  The court rejected all of Dvorak's claims, concluding that, at the time he was employed, he was not actually disabled in walking, lifting, self-care, or working; the employer did not perceive him as disabled from working in a broad range of jobs due to his drug use; and the employer was not aware of any record showing Dvorak ever suffered from a disabling condition.  Dvorak was, therefore, unable to prove he was a qualified individual with a disability.

Note: under Oregon law, if an employee is not disabled, the employer does not have to accommodate the employee's off-duty use of medical marijuana.  See Washburn v. Columbia Forest Products, in which the Oregon Supreme Court concluded that an employee's ability to counteract his physical impairment through mitigating measures (the use of prescription drugs) meant that his impairment was not "disabling" for the purpose of Oregon law.

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