Benefits

A Shy Employee, a Drug Test, and the ADA Meet in a Bar …

By Jon Hyman

Apr. 22, 2015

Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.

Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.

In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:

  1. The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.

  2. Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.

The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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