Appellate court weighs in on prescription drug testing and the ADA

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Photo of several bottles of medications.

Prescription drug testing

The Americans with Disabilities Act is relatively ambiguous as to the extent that employers may test employees for prescription drugs, but the U.S. Court of Appeals for the 6th Circuit sought to clarify the matter in a recent decision.

The lawsuit, filed in 2008, was brought by former employees of the Lawrenceburg, Tennessee facility of DURA Automotive Systems, a manufacturer of glass windows for cars, trucks and buses. DURA fired these employees after they tested positive for certain prescription drugs, under a program implemented the prior year, on the basis that they were unfit to operate machinery.

Under the ADA, employers are prohibited from requiring “medical examinations” or making “disability inquiries,” unless they are “job related and consistent with business necessity.” However, the ADA makes an exception for testing for the “illegal use of drugs.”

While it is undisputed that the phrase “illegal use of drugs” encompasses illegal drugs under federal law, such as marijuana and cocaine, the 6th Circuit and the U.S. District Court for the District of Tennessee came to different opinions on the provision’s applicability to legally prescribed drugs.

The District Court categorically ruled that DURA’s prescription drug testing program still qualified as a “medical examination” as a matter of law. Subsequently, a jury determined that DURA’s prescription program testing was not “job related and consistent with business necessity,” and awarded the employees $870,000 in compensatory and punitive damages.

The 6th Circuit, in a 2-1 decision, disagreed and vacated the jury award, finding that the question of whether DURA’s prescription drug testing program qualifies as a “medical examination” depends on the specific facts of the case, and that in this case, must be determined by a jury.

In doing so, the 6th Circuit looked to the Equal Employment Opportunity Commission for guidance. In particular, it looked to the EEOC’s “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations,” which lists a number of factors that must be used when making this inquiry.

The 6th Circuit honed in on the question of “whether the test is designed to reveal an impairment or the employee’s health.”

As the 6th Circuit saw it, DURA had provided evidence that the testing program was implemented solely for the purpose of protecting workplace safety. But regardless, the employees should have the opportunity to argue that the testing program was merely a “pretext” for screening out employees with various medical conditions and disabilities.

“If one credits Dura’s explanation and the objective evidence shows its drug-testing protocol is unlikely to reveal employees’ medical information, then the testing does not qualify as a medical examination under the EEOC definition,” Circuit Judge Deborah L. Cook wrote for the majority.

In dissent, Circuit Judge Julia Smith Gibbons argued that the facts already demonstrate that DURA’s prescription drug testing program is a “pretext.” Specifically, Judge Gibbons pointed to evidence that DURA did not do any follow-up with the employees after they tested positive under the program, to determine the impact their use of the drugs would have on employee safety.

“That Dura categorically disregarded medical advice in such a manner is compelling evidence that its drug-testing program was designed to discover and then to discriminate against employees with health conditions,” the dissent stated.

The case now returns to the District Court for a new jury trial.