Urine testing—not one of the more popular work activities. However, drug tests are part of safety programs throughout the country. Two recent events—one a court decision and one a potential legislative event—give me the opportunity to review this issue.
Alabama Case: Can You Require Employees to Tell You What Medicines They Take?
The Facts: On January 18, in Upton v. Day & Zimmerman NPS, an Alabama federal district judge reminded employers about how drug tests may connect hiring decisions and the ADA. Mr. Upton, a pipefitter who had lower back pain after a 1989 car accident, took prescription morphine, an opiate. Due to a union contract, Upton was required to pass a five-panel drug test before working at a power plant. When Upton would take the test, it came back positive for opiates, but the medical review process would note that he had a legitimate prescription and he was permitted to work. The review process included a letter from his physician showing that he could work safely while taking the pain medication.
In January 2015 (so Mr. Upton had been taking the medication for many, many years), he was sent to another plant where he took another drug screen. He presented another letter from his doctor that described his prescription, but this one also opined that requiring employees to disclose their medications may be a violation of the ADA. Mr. Upton was not hired for that job, and he sued.
The Litigation: Both Mr. Upton and the company moved for summary judgment on various issues: whether the company regarded Mr. Upton as disabled; whether Mr. Upton was, in fact, a qualified individual with a disability; and whether the company discriminated against him because of a disability. The court found insufficient evidence to support a “regarded as” claim and spent a good bit of time discussing whether Mr. Upton should be considered a qualified individual with a disability. But the lesson from this opinion deals with whether the drug testing itself was improper.
Are Drug Tests Improper Medical Inquiries? As the court notes, a pre-employment drug test does not count as a “medical inquiry” under the ADA. (The court does not say whether a decision maker’s access to medical information collected as part of an employment entrance exam under another section of the ADA is problematic as Mr. Upton failed to plead that section.) Even the letter from Mr. Upton’s doctor can be considered proper. Mr. Upton complained that he was required to disclose the actual medication he was taking—opioids—instead of just stating that he had a valid prescription and could safely do the job. The court noted that practically, an employee would have to disclose the actual medication so as to explain the positive drug test. In addition, since the inquiry was in the pre-offer stage, an applicant who tests positive for illegal drugs may be required to give possible explanations for the test.
Overall, this case again shows that pre-employment drug testing can be a valid part of the application process. Employees can also provide medical documentation to explain a positive test—that’s not improper under the ADA. Keep in mind that Mr. Upton’s disability discrimination claim survived, so the company is going to trial to defend its decision not to hire him.
Mississippi Seeks to Ban Synthetic Urine
On another, stranger drug testing note, a member of the Mississippi state legislature has introduced a bill to combat synthetic human urine products. The bill is titled “Urine Trouble” and would prohibit retailers from selling the product that mimics human urine chemistry and is packaged with instructions on how to keep it at body temperature. Apparently, it is being used to create false negative drug screens. If this proposal passes, Mississippi will join the growing ranks of states (including Florida and Illinois) that make synthetic urine illegal. We doubt that the other states have named their statutes as uniquely.
Lessons from the Drug Testing World?
- Pre-employment drug tests are okay under the ADA but you should still consider limiting decision makers’ access to the information. If the decision maker doesn’t know anything other than that the drug test was fine, he cannot be accused of discriminating against someone based on an alleged disability related to the drug test.
- As long as there are drug tests there will be people who help employees beat them. Luckily we have legislatures who are trying to help us on the front.