Drug testing and the ADA

Drug testing is a tool commonly used by employers to ensure employees are not illegally using controlled substances at the workplace. But that tool does not come without legal risk. A recent decision by the U.S. Eleventh Circuit Court of Appeals brings to light an interesting intersection between drug testing and the Americans with Disabilities Act (ADA). The case—and its implications—are discussed in detail below.

Background

The plaintiff-employee (Employee) had worked, on and off, for the defendant-employer (Employer) as a union pipefitter. The employer provided maintenance services to Alabama Power. As is customary in the industry, employers hire union pipefitters on a temporary basis and lay them off when a job is completed.

Every time the Employee applied for a job with the employer, he self-identified as disabled on an employee identification form. Because of injuries to his back caused by a car accident in 1989, the Employee received ongoing medical treatment for lumbar radiculopathy (pain in the lower back radiating to both legs). As prescribed by his doctor, he took MS Contin (an opiate), a long-acting oral form of morphine.

The Employee’s employment was governed by an agreement negotiated between his union and Alabama Power. The agreement required all workers to pass a drug test before working in any power plant, unless they have been tested sometime in the previous 6 months. Each time the Employee applied for a job, he tested positive for opiates, but successfully completed a medical review to verify that his prescriptions were legitimate. His doctor provided a letter indicating the Employee could work safely while taking the prescription.

In January 2015, the Employee applied for another union job, took a drug test, and provided a supporting letter from his doctor. In addition to explaining the Employee could work safely while taking the prescribed medication, the letter also informed the Employer that asking employees to disclose their medications might violate the ADA.

When he was not hired for the job, the Employee filed a lawsuit alleging that he wasn’t hired because the Employer’s hiring manager had accessed the Employee’s drug test results and learned what prescription medications the Employee was taking. The Employee also alleged that the Employer had made an improper medical inquiry under the ADA (pursuant to 42 U.S.C. § 12112(d)(2)(A)) and that he was not hired in retaliation for his doctor’s letter.

Prima facie cases

Before we get to the court’s rationale for its decisions in this case, let me explain a legal term of art: prima facie case. Prima facie is Latin for “at first look.” Whenever a plaintiff files a lawsuit, he or she must file a complaint that states a cause of action (or reason for suing) that is apparent on its face. If the plaintiff fails in this requirement, the lawsuit can be ended by a judge’s decision instead of going to the jury.

Also keep in mind that, in our legal system, judges determine issues of law, and juries determine issues of fact. So when a judge decides there is no prima facie case, he or she is making that decision as a matter of law.

Disability discrimination

To state a prima facie case of discrimination under the ADA, a plaintiff must show that—

1. He or she is disabled.
2. He or she is a qualified individual under the ADA.
3. He or she suffered unlawful discrimination because of his disability.

Was the Employee disabled?

There are three ways a plaintiff can show he or she is disabled under the ADA. First, the plaintiff can prove he or she is actually disabled. Second, the plaintiff can prove he or she had a history of disability. Third, the plaintiff can prove he or she was regarded as having a disability.

In this case, the Employee asserted all three theories of disability. The court ultimately determined that a jury needed to decide whether he was actually disabled or had a record of being disabled. However, the Court determined that insufficient facts supported plaintiff’s theory that he was regarded as having a disability and dismissed that theory from the case.

Was the Employee a qualified individual with a disability?

The court found that this issue turned on whether the Employee had complied with his doctor’s instructions for taking his prescription. But since each party had differing points of view, the court did not rule on this issue, finding it was exactly the type of factual dispute that should be decided by a jury.

Did the Employee suffer discrimination because of his disability?

The Employer said it didn’t hire the Employee because of six unexcused absences during his previous 5-month employment and because a supervisor had complained about the Employee’s job performance. The Employee cast doubt on this reason by pointing out that—

1. His supervisors had never issued him a disciplinary write-up for absenteeism.
2. The Employer included his name on a list of workers laid off because of lack or work rather than for cause.
3. He was referred to work for the Employer because of his layoff designation.

The court once again found that this issue should be decided by a jury.

Improper medical inquiry

The Employee alleged an improper medical inquiry under 42 U.S.C. § 12112(d)(2)(A), which provides that an employer can “not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” On the other hand, the Employer argued a drug test is not an improper medical inquiry, as provided by 42 U.S.C. § 12114, which expressly states “a test to determine the illegal use of drugs shall not be considered a medical examination.” This provision, argued the Employer, allows it to conduct a pre-employment drug test.

After considering the arguments from both sides, the Court agreed with the Employee by ruling the drug test was not an improper medical inquiry under the ADA.

Retaliation claim

The Employee also stated a retaliation claim in the lawsuit. To state a prima facie case of retaliation under the ADA, a plaintiff must show that—

1. He or she engaged in statutorily protected conduct.
2. He or she suffered an adverse employment action.
3. There is a causal connection between the protected conduct and the adverse employment action.

In this case, the Employee argued that submitting his doctor’s letter was protected conduct. Protected conduct typically occurs when an employee submits a complaint about unlawful conduct. The court disagreed on the basis that the Employee wasn’t complaining about a violation of law. Instead, the Employee was required to submit the letter by an agreement between the union and Alabama Power. And submitting the letter allowed the Employee to show that a positive drug test was due to prescribed medication—which did not amount to a complaint about illegal conduct. The court also pointed out that inquiries about prescriptions are permissible under the ADA so long as the employer refrains from asking disability-related questions. Proper questions include—

• What medications have you taken that might have resulted in the positive test result?
• Are you taking this medication under a lawful prescription?

The court therefore found that the Employee did not engage in statutorily protected conduct and so his retaliation claim was dismissed.

Bottom line

Although this case demonstrates that drug tests in principle are legal under the ADA, employers should always be careful with requiring medical testing of any kind at any stage of the employment relationship. Under some circumstances, such testing may violate the ADA as well as the Genetic Information Nondiscrimination Act (GINA). And any drug testing should be conducted pursuant to a written policy reviewed by legal counsel or a human resources professional.

For more information, see Upton v. Day & Zimmerman, 2018 WL 465979 (decided by the U.S. Eleventh Circuit Court of Appeals on January 18, 2018).

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2018