DRUG TESTING AND THE AMERICANS WITH DISABILITIES ACT (ADA)

One law that often comes into play when an employer’s drug screening practices are challenged is the Americans with Disabilities Act (ADA). There are two recent developments in ADA case law that employers should be aware of:

1. Drug screening is likely not a prohibited pre-offer medical inquiry
2. Employers must provide reasonable accommodations in the testing process for individuals with disabilities.

 

Some applicants have sought legal action against companies that conduct pre-employment drug screening. They allege that pre-employment drug screening is a prohibited “pre-offer medical inquiry” under the ADA. However, guidance from the Equal Employment Opportunity Commission (EEOC) states that employers have the right to test applicants for illegal drug use. Laboratory results of the drug test should be reviewed and verified by a licensed and approved medical professional called a Medical Review Officer (MRO) to determine if a positive laboratory drug test is the result of a legal prescription medication being taken by the donor.

 

Courts have also held that drug screening for illegal substances is not a prohibited “pre-offer medical inquiry” under the ADA. A Pennsylvania federal court reached the conclusion that in order for a drug test to be considered a medical inquiry under the ADA, a claimant must show that (1) the drug test in question was not administered to determine the illegal use of drugs, and (2) that the drug test did not, in fact, return a positive result for the illegal use of drugs. The employer in this case was able to present credible testimony at trial showing that its only intent in performing pre-offer drug testing was to determine whether applicants were using illicit drugs.

 

It is important to highlight that the above challenges only exist when drug testing is conducted at the “pre-offer” stage. Employers are advised to conduct pre-employment drug screening after an offer of employment has been made in order to avoid any ADA issues altogether.

 

ACCOMODATING EXISTING DISABLITIES

Employers must ensure that their employment drug screening process provides reasonable accommodations for applicants and employees with disabilities. In a case filed against Kmart by the Equal Employment Opportunity Commission (EEOC), Kmart was found negligent after refusing to employ an applicant after he was unable to provide a urine sample for drug testing. The applicant claimed he couldn’t provide the sample due to his kidney disease and dialysis. In addition to a $100,000 judgment, Kmart also had to revise its drug-free workplace and pre-employment drug testing policy to provide reasonable accommodations to employees or applicants in the testing processes.

 

In a similar case, Wal- Mart agreed to pay $72,500 to settle a case alleging that one of its stores refused to provide a job applicant with end-stage renal disease with an alternative to a urinalysis drug test. The lawsuit alleged that the applicant went to the drug testing facility to ask for an alternative test to be performed and when the facility agreed that an alternative was possible, the applicant took that information to the store manager for consideration. The manager refused to accommodate the alternative test and the plaintiff’s application was rejected for failing to take the urinalysis test.

 

Employers should review their substance free workplace and testing policies to ensure that they allow for accommodations to be made for applicants or employees who are unable to comply with standard drug testing procedures due to a disability.

 

IS DRUG ADDICTION CONSIDERED A DISABILITY UNDER ADA?

While casual drug use is not considered a disability under ADA, individuals addicted to drugs, have a history of addiction or who are regarded as being addicted have an impairment under the law. In order for an individual’s drug addiction to be considered a disability under the ADA, it would have to pose a substantial limitation on one or more major life activities. In addition, the individual could not currently be using illegal drugs. This classification of a disability, however, does not prevent an employer from testing for current drug use. Users (even addicts) may be denied employment because of their current use of illegal drugs.

 

An employer’s substance free workplace and testing policy should incorporate these issues in order to avoid potential liability.

 

For a free, no obligation review of your current substance free workplace and testing policy, please contact Carolina Testing.