Your company is hiring drivers and therefore requires pre-employment drug tests. That makes sense. You want to keep your employees and the public safe. Not to take such a step would be inviting liability, somewhere down the road (pardon the pun). You go through all your usual steps. You find one particular candidate promising and extend a conditional job offer. You then have her take a pre-employment drug test. She tells you she did recently use some drugs that will probably show up in her test, and so she can’t provide a negative drug test. You therefore withdraw the job offer and shortly thereafter learn that the candidate filed an EEOC charge. The EEOC ultimately sues on her behalf. How can that be? Your company has a right — and an obligation– to ensure that its drivers are not under the influence of drugs, right?
Wait. Is this a trick question? I mean, do we really have all the relevant facts? The short answer to both questions: Yes, kind of, and probably not. Read on to learn more.
As you may have already guessed, yes, this discussion is based on a real, live case. The name of the case is EEOC v Professional Transportation, Inc. Here’s what went down: Professional Transportation Inc (PTI) was hiring a driver. It found a promising candidate, and offered her the job, informing her she would need to take a pre-employment drug test. Prior to taking the test, she explained that she was taking Suboxone, a treatment for opiate addiction. One of PTI’s HR representatives reportedly researched information on Suboxone’s possible safety-related side effects, and then withdrew the offer. The candidate filed an EEOC charge and the EEOC filed suit on her behalf.
Wait. If Suboxone produces safety-related side-effects, what is wrong with PTI rescinding the offer? Apparently, no one looked into whether this candidate actually experienced those side effects– or any side effects, for that matter. The EEOC says she didn’t experience any side effects from Suboxone.
Opiate addiction is a disability and therefore is protected under the ADA. No, allowing an employee to come to work under the influence of illegal drugs (or legal drugs without a legal prescription) is not a reasonable accommodation of any disability –whether that disability is drug dependency or anything else. The ADA does NOT protect current illegal drug use. Yes, an employer can rescind a job offer if side effects of a medication — even one that is legally prescribed–interfere with the safe performance of the job if there is no reasonable accommodation available. The EEOC takes the position that employers have to conduct an individualized assessment of the effects of treatments like Methadone or Suboxone. In other words, employers have to determine whether the employee actually experiences side effects that could impede the safe performance of job functions. Research about possible side effects, without more, is not a sufficient basis for rescinding or denying a job offer.
So, what can you do to ensure a drug-free workplace and minimize ADA-related claims? Here are some possibilities:
- Extending a conditional job offer before requiring a drug test;
- Limit drug testing to either safety-sensitive positions or those where it is otherwise job-related or consistent with other legitimate business interests;
- Make sure your procedures allow an employee to disclose whether s/he is taking legally prescribed drugs;
- If a candidate is taking legally prescribed drugs, either exclude those results or check if there are any side-effects that could impact safe job performance;
- If a medication does have safety-related side-effects, find out whether the employee actually experiences them;
- Engage in the interactive process. Explore the possibility of reasonable accommodations;
- Whatever you ultimately decide, document everything!
Oh, wait. There’s one more: Train hiring managers and supervisors, and periodically monitor compliance. OK, I think we’re done for now. See you next time!
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