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You’ve noticed that one of your company’s manufacturing facilities has a higher rate of workplace accidents than comparable plants and, because you think that it may be caused by either legal or illegal drug use, you now screen employees for 12 substances that you believe could be dangerous in the workplace, including some commonly found in legal prescription drugs. Several employees who are not disabled tested positive for a prohibited substance and were given a chance to transition to another drug that does not contain the prohibited substance. When they continued taking medication with the prohibited substance, they were discharged. They claim that the drug testing violates the Americans with Disabilities Act (ADA) and are suing your company. Can they prevail?
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Answer: |
It depends on how their claim is framed. In a case with similar facts, the Sixth Circuit agreed with the Fifth Circuit that individuals who are not disabled cannot pursue claims under ADA Sec. 12112(b), which prohibits the use of qualification standards and other tests that tend to screen out disabled individuals. Although nondisabled individuals may bring claims under some provisions of the ADA, the plain text of subsection (b)(6) only covers individuals with disabilities, and not a broader class of individuals such as “employees,” the court noted. A straightforward reading of subsection (b)(6) compels the conclusion that only a “qualified individual with a disability” is protected from the use of qualification standards and other tests that tend to screen out disabled individuals, the court reasoned. Thus, the circuit court held that individuals without disabilities were not protected and could not challenge the employer’s policy.
However, upon return to the trial court, the former employees were allowed to take their claim to trial under ADA Sec. 12112(d)(4)(A), which prohibits medical examinations and disability inquiries. According to the district the court, a reasonable jury could find that the initial drug test and the follow-up review of prescriptions were a “medical examination” under the ADA, even if they were not directed at analyzing the effects of any medical condition. Emphasizing the ADA’s provision that “a test to determine the illegal use of drugs shall not be considered a medical examination,” the district court reasoned that this provision could be reasonably read to suggest that urinalysis and similar testing — outside of testing for illegal drugs — constitute a medical examination under the ADA.
Source: Bates v Dura Automotive Systems, Inc (6thCir 2010) 2010 U.S. App. LEXIS 22903 and (MDTenn 2010) 2010 U.S. Dist. LEXIS 133410.
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