Lawsuits Target Testing for Legal Drugs

By Jeff Casale

Sep. 30, 2009

An automotive parts distributor is the target of lawsuits over its drug-testing policy, including one filed by the U.S. Equal Employment Opportunity Commission alleging that workers’ rights were violated when they were tested for legally prescribed drugs.

The EEOC filed a complaint last month in U.S. District Court for the Middle District of Tennessee against Rochester Hills, Michigan-based Dura Automotive Systems, which tested all of its production employees for certain legally prescribed drugs in addition to illegal, controlled substances in 2007.

The EEOC contends that Dura violated “various provisions” of the Americans with Disabilities Act by testing for legally prescribed drugs without having just cause. According to the complaint on behalf of employees of Dura’s Lawrenceburg, Tennessee, plant, the employer “tested without reasonable suspicion that such medications were affecting the employees in performance of their jobs.”

Further, the lawsuit states that Dura practiced “unlawful” employment practices, including suspending employees in excess of 30 days if they tested positive for certain legally prescribed medications. Dura also required that employees disclose medical conditions for which they had to take the drugs and required workers to forgo taking their medications as a condition of returning to work, according to the suit.

If workers failed at their job duties without the benefit of their prescribed medications, they were fired, the suit alleges.

The EEOC is seeking to end Dura Automotive’s drug-testing policy, which allows for the testing of legally prescribed drugs, and to collect back pay and compensatory damages as well as punitive damages.

The EEOC’s lawsuit is in addition to a class-action lawsuit alleging discrimination by Dura Automotive that was filed by individuals who claimed they were suspended or lost their jobs as a result of the company’s drug testing policy.

Robert Boston of Nashville’s Waller Lansden Dortch & Davis, who is representing Dura, did not return a call seeking comment.

Leslie E. Silverman, a Washington-based partner for Proskauer Rose’s labor and employment department practice and former vice chair of the EEOC, says Dura allegedly has violated multiple EEOC guidelines and cannot see how, if the allegations are proved, the court would rule against the EEOC. Silverman is not involved in the case.

Silverman says a drug test is lawful if it screens for illegal drugs, but said such a test for legally prescribed drugs is regarded as a medical exam under ADA guidelines. She says there are specific requirements that an employer must meet to conduct a medical exam; specifically, it must be job-related and consistent with “business necessity.”

“What makes this case unusual is the employer is looking for both illegal and legally prescribed drugs,” Silverman says. “Under EEOC guidelines, employers are allowed to test, but [the guidelines] exclude the use of prescription medications.”

Silverman also says that, based on the EEOC’s complaint, Dura screened all employees and didn’t limit it to those who affect public safety—a person driving a forklift, for example.

Todd Bromberg, Washington-based attorney for Wiley Rein’s employment practice, agrees. He says the alleged testing by Dura for legally prescribed drugs is uncommon and “improper.” While some employers may conduct such a drug screening if it is allowed by state law, he noted the practice is not common. Tennessee does not have such a law.

“The question is: Did the employer have good reason to test for legally prescribed drugs?” Bromberg says. “Obviously, illegal drugs and alcohol pose a threat in the workplace, and it’s possible that some people can abuse legal drugs if they take too much or the combination of drugs causes [a problem]. However, it’s not an absolute that legal drugs pose a threat in the workplace.”

Both attorneys agree that most employers would have a hard time proving that testing all employees at a plant for legal prescription drugs was necessary.

“The ADA allows employers to test employees for controlled substances, but testing for legally prescribed medications and forcing employees to disclose their medical reasons for taking them clearly exceeds what the ADA allows an employer to do,” Katharine W. Kores, director of the EEOC in the Memphis, Tennessee, district office, said in a statement.

“The situation at Dura Automotive was aggravated by the company’s humiliating those who tested positive by conducting its tests in a manner that immediately made their identities known to its entire workforce,” she said.

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