Does your company conduct pre-employment drug screening? Given the serious health and safety risks that prescription drug use and abuse pose in the workplace, it would certainly not be an unreasonable precaution. Is there a downside to drug screening — other than the expense and extra time? Yes, if you are not careful in how you conduct the drug screens. While federal and state regulations may have something to say on the matter, guess who/what else does? If you guessed the EEOC you are correct! You deserve a prize. Unfortunately I don’t have one for you, but isn’t it nice to know you deserve one? Seriously though, getting back to the issue at hand, what concerns does the EEOC have with drug testing, and what do you need to do to make sure that your screening doesn’t trigger an EEOC charge? That’s a great question, if I say so myself (and apparently I do). Let’s see if we can start answering it after the jump, shall we? See you in a bit…
Sometimes the best way to learn more about a subject is to use a hokey hypothetical, which I haven’t done in a while. How’s this one: You are a Hiring Manager at Delightful Doings, Ltd (“Delightful”). You are currently hiring an accounting clerk. You require all your applicants to undergo drug screening, and that screening includes testing for prescription drugs. You also require all applicants to disclose use of any prescription or non-prescription drugs. Your policy is clear: you will not hire anyone with a positive drug screen of any kind. Marvelous Martha applies for the job. You extend her an offer contingent on a clean drug screen. The drug screen comes up positive for percocet. That’s it. Martha’s candidacy is over. Her protestations that she has a prescription for the percocet that she takes it for back pain, that she last took it two days ago, and that she does so only as directed by her physician do not matter. Your policy is your policy. You revoke the job offer. That same week, your administrative assistant brings you a doctor’s note that his/her doctor has given him/her a prescription for prednisone, for respiratory issues. Given your company’s policy, you have no choice, so you terminate her. Six weeks later, you receive two notices from the EEOC: Martha and your administrative assistant have both filed discrimination charges against your company and you. This is essentially the same thing that happened in two recently filed EEOC cases, EEOC v. M.G. Oil Company d/b/a/ Happy Jack’s and EEOC v. Georgia Hospitalists Group, LLC et al. What did the employers (including Delightful and you) do wrong? Let’s have a look.
We know that the EEOC can only get involved if there is an allegation that an employer violated one or more federal employment discrimination laws. Which one could possibly be involved here? If you said the ADA/ADAAA, you are correct. If we were in class, I’d tell you to go to the head of the class. (We’re not, but still it’s nice to know that you could be at the head of the class for that, right?) You may recall that the ADA, and specifically the term “disability” is meant to be interpreted very liberally. (Click here and here for review.) Someone with respiratory issues or with a more or less chronic back issue, is, in all likelihood “disabled” within the meaning of the ADA. Now, wait a minute, you might be thinking: Doesn’t an employer have the right to ban drug use in order to ensure that employees are able to safely perform their job functions and not pose a risk to themselves or others? Yes, but the way in which the employers in the real cases — and you and Delightful–went about it violates the ADA/ADAAA. Let’s keep digging.
Pre-employment tests, including drug screening must be, in EEOC language “job-related and consistent with business necessity”. Note that all the employers mentioned require every applicant to undergo drug testing and prohibit any drug use by any employee. No distinction is made for safety-sensitive and non-safety-sensitive jobs. There is/was no medical review of test results, nor was there any allowance made for those using legally prescribed drugs in compliance with a physician’s instructions. Furthermore there was no inquiry as to whether the use of the prescription drugs in question in any impacted the applicants’/employees’ ability to properly and safely perform their job functions or their own or others’ safety. This type of rigidly applied policy violates the Americans with Disabilities Act, based on both actual and perceived disabilities. It results in qualified individuals with disabilities being denied employment opportunities and in receiving adverse treatment at work, because they are actually disabled or perceived as disabled.
Does this mean that you cannot conduct pre-employment drug screening? Can you no longer implement policies that allow for discipline/termination of employees who abuse drugs? No. Here is what it does mean:
- You cannot adopt a one-size-fits-all approach to drug screening (or most any employment practice for that matter);
- You should, in most cases, distinguish between jobs that are and are not safety-sensitive;
- Where employees/applicants disclose use of a legally prescribed drug, you should engage in interactive dialogue to discuss their use of the drug(s) in question, whether such use impacts their ability to safely perform their job functions, and their capabilities with and without reasonable accommodations;
- You should re-visit, and if appropriate, update your current policies, and you should make sure that anyone implementing your policies receives proper training and has a proper understanding of the ADA, how it impacts an employers’ right to conduct drug screening.
Well, I think you get the idea, so we’ll stop here for now. See you next week!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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