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Monday ADA Confessional: I Agree With EEOC…Maybe, Sorta….

August 22, 2016

By Michael G. McClory

At The Bullard Edge we do not pull any punches.  We tell you when EEOC is wrong, as it has been repeatedly (see our posts regarding questionable moves by EEOC, its overstatement of effectiveness, and the agency’s need for renewal of purpose).  On the other hand, because we are fair, we flag instances where we think EEOC is right (such as on payment for pre-employment fitness for safe duty exams under the ADA).
 
Recently, EEOC took a position on pre-employment drug testing and the ADA that may be correct.  It all depends on the facts. 
 
Let’s consider these two scenarios.  Both scenarios take place at Mid-Town Candles, a private employer that has adopted and implemented a fairly typical drug and alcohol policy.  Among other things, the policy provides for pre-employment drug testing.
 
Scenario 1:  
Ed applied for a production line position with Mid-Town Candles.  He has industry experience and a stable job history.  Following a strong interview, Mid-Town Candles offered the position to Ed contingent on a negative pre-employment drug test.
 
Mid-Town Candles has contracted with the Clinic on the Corner to conduct all pre-employment drug tests.  When Ed is told where to go for his pre-employment drug test, he informed the company that he has an aversion to the “US medical industry complex.”  He told HR that in the past employers have always permitted him to go to his treating doctor for drug testing.
 
Mid-Town Candles had no interest in negotiating the terms of the pre-employment drug test.  It told Ed that testing had to be done at the Clinic on the Corner.  When Ed refused, Mid-Town Candles rescinded the job offer.  Ed filed a claim with EEOC alleging disability discrimination.
 
Scenario 2:  
All of the facts remain the same up to the point where Ed complains about the medical industry complex.  We will pick up the action from that point.
 
When Ed is told where to go for his pre-employment drug test, he informed the company that he has a medical condition that prevents him from providing a urine sample.  He tried to explain to HR that he was completely willing to submit to drug testing and requested that he be permitted to go to his treating doctor for drug testing.
 
Mid-Town Candles had no interest in negotiating the terms of the pre-employment drug test.  It told Ed that testing had to be done at the Clinic on the Corner.  Ed said that he would go to the Clinic on the Corner.  When he reported to the clinic, Ed attempted to explain his medical situation to the lab technician.  Although he listened to the medical explanation Ed offered, the technician’s only response was to confirm that Ed would not be undergoing testing at the clinic.  Consequently, Mid-Town Candles rescinded the job offer.  Ed filed a claim with EEOC alleging disability discrimination.
 
Analysis:  
Based on these facts, The Bullard Edge believes that Mid-Town Candles might win the first claim, but lose the second claim.  Here are the relevant points to consider.
 
First, a drug test is not considered to be a medical exam.  For that reason, the ADA’s restrictions on the timing and scope of medical exams and inquiries do not apply with respect to drug tests.  In these scenarios, Mid-Town Candles requires that candidates undergo pre-employment drug tests after a conditional offer has been extended.  It could require a drug test earlier in the selection process if it wanted to incur that expense.
 
Second, the ADA requires employers to provide “reasonable” accommodation.  Most often we think about reasonable accommodation in the context of job performance; it is a change or modification that enables an employee to perform the essential functions of the job.  The reasonable accommodation requirements also apply in the context of the application process and with respect to the enjoyment of the "benefits and privileges" of employment available to employees without disabilities.
 
Third, the ADA’s requirements related to reasonable accommodation in the application process are intended to allow an individual with a disability to receive equal consideration for job openings.  Among other things, employers may need to modify the time or place for interviews, provide written materials in alternate formats, and/or modify various policies.  The accommodation requirements have limits; employers are not required to provide accommodations that would constitute an undue hardship. 
 
Fourth, a drug policy is a great example of a policy that might need to be modified in part.  While the law does not require an employer to modify the prohibitions in a drug policy (e.g., there is no requirement to accommodate the medical use of marijuana), the law may require reasonable modifications to the time, place or manner of drug tests. 
 
Fifth, in Scenario 1, above, Ed is not asking for a modification of the drug policy because of a medical condition.  He would prefer to go to his own doctor, but there is nothing in the scenario to suggest anything more than a personal preference.  The decision by Mid-Town Candles to rescind the conditional job offer would seem to be on solid ground.
 
Sixth, on the other hand, Mid-Town Candles seems to be in a more precarious position in Scenario 2.  There, Ed has informed the company that he is willing to be drug tested but has a medical condition that makes the standard form of drug test difficult or impossible.  The ADA requires the company to consider whether a modification of the manner of the drug test is needed and reasonable.  However, the company did not engage in the interactive process and its rescission decision was not based on undue hardship.
 
Seventh, EEOC recently sued an employer under circumstances that reportedly were similar to Scenario 2.  (EEOC’s press releases are one-sided.  The agency appears to cherry pick facts and never presents the employer’s point of view.)  Specifically, in an August 11, 2016 press release EEOC announced that it had reached a settlement with an employer that refused to modify its drug testing process for a candidate whose end stage renal disease prevented her from providing a urine sample.  So long as there was a reasonable alternative to urinalysis, the ADA in that circumstance likely requires that an employer modify its drug testing process (not the drugs prohibited under the policy).
 
Best regards,
 
 
The Bullard Edge 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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