Time & Attendance
By Jon Hyman
Aug. 28, 2014
Employers with employees working in safety-sensitive positions have an obligation to ensure that their employees are not impaired while engaged in their jobs. For example, earlier this week I discussed Blazek v. City of Lakewood, in which the 6th Circuit concluded that the Americans with Disabilities Act does not protect a drunk snowplow driver. We also know that the ADA does not protect employees under the influence of illegal drugs.
What about legally prescribed drugs? As an employer, can you test employees for prescription medications packaged with warnings about operating heavy equipment. And, if an employee tests positive, can you require those employees to disclose those medications to the third-party company hired to administer the tests. Surprisingly, the ADA is silent on these issues.
In Bates v. Dura Automotive Sys. (8/26/14) [pdf], the 6th Circuit attempted to give us some answers.
1. Does the ADA permit an employer to test for prescription medications?
Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.
The Court concluded that this issue presented a close enough call for a jury to decide:
Dura denies using its drug-testing protocol to reveal impairments or health conditions…. Far from a “free peek into a[n] … employee’s medical history,” … the evidence shows that Dura abstained from asking plaintiffs about their medical conditions…. The urine test itself revealed only the presence of chemicals — amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and propoxyphene. No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an “impairment”) under the EEOC definition of medical examination….
Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol — with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs — reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.
Still, much depends on Dura’s credibility. Inconsistencies between Dura’s written and actual drug-testing policies and its disparate treatment of individual employees may evince a pernicious motive. For instance, one plaintiff (Bates) claims that Dura asked her directly about her prescription medications and fired her for reporting them, and Dura allowed another plaintiff (Long) to return to work despite testing positive. If credited, a jury could reject Dura’s explanation as a pretext for screening out potentially disabled employees. Moreover, plaintiffs-appellees may present evidence that the disclosure of machine-restricted medications typically reveals confidential health information, such that the jury could determine that the test targets information about an employee’s physical or mental health, regardless of Dura’s intent.
2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?
The 6th Circuit concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of machine-restricted medications after a positive test. Given the fact-based nature of this inquiry, the court concluded that a jury should decide this question, too.
Dura denies asking employees about their general prescription-drug usage. Viewing the evidence in its favor, Dura’s third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same…. A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability….
A jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.
How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?
Limit testing for the use of prescription drugs to safety-sensitive positions and only those medications that could pose a safety risk.
Be consistent in your treatment of employees who test positive.
Only disclose the results to those who need to know.
Do not ask employees to disclose the underlying medical condition for which they are taking the medication.
These steps will help limit your risk in the event an employee challenges your testing or the use of the results.
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