- $750,000 EEOC Settlement Highlights Pitfalls of Drug Testing for Prescription Medications by Employers
- September 19, 2012 | Authors: Roger S. Kaplan; Kathryn J. Russo
- Law Firm: Jackson Lewis LLP - Melville Office
An auto parts manufacturer has entered into a consent decree with the Equal Employment Opportunity Commission requiring it to pay $750,000 to a group of current and former employees at its Lawrenceburg, Tennessee facility based on allegations that company drug testing practices violated the Americans with Disabilities Act. EEOC v. Dura Automotive Systems, Inc., CV No. 1:09-cv-0059 (M.D. Tenn. Aug. 31, 2012).
The EEOC alleged that the company tested all of its Lawrenceburg employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA. It alleged that the company required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking the medications. The company also made it a condition of employment that the employees cease taking these medications, without any evidence that they affected the employees’ job performance. According to the EEOC, the company then suspended employees until they stopped taking their prescription medications and fired those who were unable to perform their job duties without the benefit of the medications. Finally, the EEOC alleged that the company effectively announced individual test results to all employees by informing workers of positive test results in common areas where others were waiting to be tested and requiring those who tested positive to remain in a separate group away and from their work stations.
In addition to the monetary settlement, the company also was enjoined from making medical inquiries and conducting medication examinations that are prohibited by the ADA, from conducting employee drug tests that are not job-related or consistent with business necessity, and from disclosing illegally confidential information obtained through medical inquiries of employees, among other things.
Lessons for Employers
This case highlights some of the dangers for employers in drug testing for prescription medications. Specifically:
- Unlike drug tests for illegal drugs, the EEOC considers tests for prescription medications to be medical examinations under the ADA, and therefore, such tests must be “job-related and consistent with business necessity.”
- Employers should not have blanket rules prohibiting employees from using certain prescription medications (even for good faith, safety reasons), without undertaking an individualized assessment of the particular employee’s situation, as required by the ADA.
- All positive drug test results for prescription medications should be reviewed by a Medical Review Officer (i.e., a licensed physician with expertise in analyzing drug test results) to determine whether the employee’s use of the prescription medication is legal and explain the positive test result. For employees in non-safety-sensitive positions, employers need not conduct further analysis once the MRO has verified the test result as positive or negative. However, if there is a finding of legitimate use of prescription medication by an employee in a safety-sensitive position, the employer will need to conduct an individualized assessment to determine whether the particular employee can perform the essential functions of his or her job, with or without reasonable accommodations, and without posing a direct threat of harm to the health or safety of himself or herself or others.
- Drug test results are confidential and must be handled in the same confidential manner as medical records.
- Where it is legally permissible to do so, employers who conduct drug testing on their own premises must ensure the confidentiality of the testing process and the test results for each individual tested.