Employer’s Drug Testing Program May Violate Ada Part 2

Employers Drug Testing May Violate ADA

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On appeal, the Sixth Circuit (which hears appeals from federal district courts in Michigan, Ohio, Kentucky and Tennessee) in determining whether Dura’s drug testing was a medical examination and/or an inquiry about disabilities turned to guidance from the Equal Employment Opportunity Commission which asks whether the test –

  • is administered and/or interpreted by a health care professional or given in a medical setting
  • is designed to reveal an impairment or the employee’s physical or mental health
  • is invasive
  • measures employee performance or the physiological responses to the task
  • utilizes medical equipment or is given in a medical setting.

The court determined that the urine-based test conducted by Dura was performed in a quasi-medical setting, with medical equipment and health professionals interpreting the results. However, the key to the court’s analysis was whether the test was designed to reveal impairment or the employee’s health.

Here, Dura abstained from asking employees about their medical conditions and the plaintiffs failed to show how the urinalysis or post-test reporting of machine-restricted medications revealed their medical conditions. The narrow focus on substances with machine operating restrictions may actually reflect Dura’s effort to avoid receiving information about its employees’ medical conditions.

However, the court also noted that there was much discrepancy between the written protocols and the practices implemented. Thus, a jury could find the drug testing was a pretext for screening out individuals potentially having disabilities. Therefore, the issue should have been resolved by a jury and the trial court erred in granting the plaintiffs’ motion.

The court next determined whether Dura had made prohibited “disability inquiries”. The EEOC explains that prohibited disability inquiries include asking an employee whether they are currently taking any medications or have a history of doing so, or monitoring whether employees are taking medications. However, the EEOC guidance permits an employer to ask about alcohol or illegal drug use and only prohibits inquiries about lawful drug use “if the question is likely to elicit information about disability.”

The court concluded that a “drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability.” Thus, while Dura’s drug testing program may push the boundaries of the ADA’s definition of a medical examination/disability-inquiry, it does not clearly fit into the prohibited conducted. Therefore, a jury could rule either way, and the district court erred when it granted plaintiffs’ motion.

In Conclusion

Finally, the court explained that if a jury finds that the testing was a medical examination or an inquiry about disabilities, then the employer will shoulder the burden of proving it was job related and a business necessity (thereby justifying its actions under the ADA). That burden may be met by showing it had a reasonable belief prior to conducting the test based on objective evidence, that(1) the employee’s ability to perform the essential functions of their job would be impaired by the medical condition, or (2) the employee would pose a direct threat of substantial harm to himself or others because of the medical condition.

This case emphasizes, among other things, that employers must not only have the proper policy in place, but that the process must follow those in the policy. And always seek legal advice from an attorney who specializes in employment law, like the author, before developing a drug testing policy to avoid violations of the Americans with Disabilities Act.

If you need any assistance with ADA issues, contact the author at 313-983-4863 or corr@plunkettcooney.com.

Claudia Orr
An attorney in the firm’s Detroit office, Claudia D. Orr focuses her practice primarily in the area of labor and employment law. Her clients have included Fortune 500 companies, local governments, tier-one automotive suppliers, nationwide distributors of pharmaceutical products, numerous nonprofit agencies, healthcare providers, restaurants, and wholesale food distributors. She also has extensive litigation and appellate experience, and regularly practices before state and federal courts as an advocate.