YOU’RE TAKING WHAT? The EEOC, the ADA and Tests for Legal Drugs.

Anyone who has heard me speak about the Americans with Disabilities Act knows my take on the issue of drug testing and alcohol testing of current employees. Over and over and over I have said that you can test for illegal drugs whenever you want but you are limited on when you can test an employee for alcohol.  The EEOC just reminded us that there are limits on when you can test for legal drugs, too.

Why, you might ask, is this true?

Well, a rule under the ADA says you can only conduct a medical examination of a current employee if the inquiry is “job related and consistent with business necessity.”  It says so right in the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations.

A “medical examination,” according to the guidance, “is a procedure or test that seeks information about an individual’s physical or mental impairments or health.”  That includes “blood, urine, and breath analyses to check for alcohol use; ….”  And then the guidance goes on to say: There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:

  • Tests to determine the current illegal use of drugs ….”

And while it does not mention that a medical examination also includes a test for legal drugs taken in accordance with a prescription, that seems obvious to me and probably to you, too.  Come on, if you can’t test for alcohol without a reason, why on Earth would you be able to test for prescription medication?

This all seems pretty simple to me. In fact it seems so simple that I often make a bit of a joke when I am speaking on the topic:

Me:  “You can test for illegal drugs whenever you want but you have to have a business reason to test for alcohol.”

 Participant:  “Why is that?”

Me:  “I’m not sure, but could it be that Congress is full of drinkers and not drug users?”

Works better when I am actually speaking, I realize, but it usually gets a laugh or two.

Still,  this whole issue of drug testing is no laughing matter. And it seems I may have been wrong about how simple this is. Or maybe I just didn’t take into consideration the fact that when we are talking about drug testing we are talking about testing for “illegal drugs,” not legal drugs being taken according to a prescription.

Last week Dura Automotive Systems entered into a settlement agreement with the EEOC to pay $750,000 to settle an ADA suit.  According to the EEOC press release:

Dura Automotive Systems, Inc. tested all of its Lawrenceburg, Tenn., plant employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA.  Five of the drugs tested for were illegal controlled substances, the EEOC said, but the other seven were legal medications that were lawfully prescribed for the individuals taking them.

Further, the EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications, and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications were affecting the employees’ job performances.  According to the EEOC, Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications.  Moreover, Dura conducted the drug tests in such a manner as to disclose to its entire work force the identities of those who tested positive.

Oops.  Can’t do that.

So where did Dura Automotive trip up?  Well, you can test for legal drugs but only if the test is job related and justified by business necessity.  That is kind of hard to prove when you test all of your employees.  Next, if an employee has a prescription for a legal drug, you can’t ask them what underlying medical condition they have that necessitates taking the drug.  That would be an impermissible medical inquiry under the ADA,  Also, you can’t  make an employee stop taking a legally prescribed medication unless you can prove that taking the drug actually affects the employee’s ability to do their job. And finally you can’t conduct your drug test in such a way that everyone knows everyone else’s results.  Disclosing confidential medical information is a violation of the ADA too.

So before you decide to test your entire workforce for drugs, why don’t you give one of the labor lawyers at WNJ a call? It will probably cost you less than $750,000.