A federal appeals court recently found that an employer’s drug testing program may be a medical test and in violation of the Americans with Disabilities Act (“ADA”). Bates v Dura Automotive Systems. Let’s look at what happened.
Dura Automotive Systems manufactures windows for automobiles. In 2007 it initiated a new drug testing program because it had received information that employees were abusing drugs and alcohol on the job and there had been some property damage.
The policy not only prohibited employees from being impaired or under the influence of alcohol and illegal drugs while at work, it also prohibited the use of prescription medications and over-the-counter drugs if the use endangered others or affected job performance. Where a drug test had a positive result, it would be confirmed and a medical review officer (“MRO”) would communicate with the employee concerning their use of medications that may have caused the test result.
After urine testing all of its employees at its Lawrenceburg facility in 2007, there were some positive “instant” results. FFS, which conducted the tests, notified Dura of the results and employees who failed were sent home. FFS also sent all of the “non-negative” test results to Quest Diagnostics for confirmatory testing. The MRO questioned employees about the positive results. Where the employee had a valid reason, the MRO changed the final test result to negative.
Though FFS forwarded the MRO’s revised results, Dura prohibited any employee use of drugs that had warnings prohibiting the operation of machines and required all employees who had tested positive to bring in their medications so that warning labels for the drugs could be reviewed. Employees were told that they would be fired if they continued to use medications that had warnings against operating machinery.
The six plaintiffs had all tested positive for drugs and were terminated. Dura denied questioning the plaintiffs about their underlying medical conditions or directly questioning them about their use of the medication(s). However, it is undisputed that FFS revealed to Dura the plaintiffs’ “machine-restricted” medications and that Dura has a blanket policy of terminating employees who test positive for such medications.
At trial, the parties filed motions asking the court to rule on whether the employer’s drug test violated the ADA by requiring medical examinations or making inquiries about disabilities. The court granted the plaintiffs’ motion ruling, as a matter of law, that the testing was a medical examination/disability inquiry. The remaining issue of whether the exam/inquiry was job-related and consistent with business necessity was submitted to the jury, which found in favor of the plaintiffs.
On appeal, Dura argued that its drug testing protocol did not seek information about the employees’ health or their general use of medications. Instead it only sought information concerning whether the employee used drugs that had warnings about operating machinery or were illegal.