An EEOC Victory Provides Lessons on Applicant Drug Testing Accommodations

Quick Hits

• A jury awarded more than $400,000 in damages to an applicant who was denied employment due to a failed drug test—one that the applicant, a veteran, informed the employer she might fail because of legally prescribed medications she took for PTSD.
• The EEOC successfully argued that the employer, a retirement community, violated the ADA by failing to allow the applicant to explain her non-negative drug test result.
• The verdict serves as a reminder for employers of their reasonable accommodation obligations to applicants under the ADA, both before and after a conditional job offer, when an applicant discloses disability-related prescription drug use and/or has a non-negative test result.

Background

In EEOC v. The Princess Martha, LLC, an applicant interviewed for and was offered a position as an activities coordinator for a retirement community, pending the community’s standard background check and drug test. According to the EEOC’s complaint, during her interview, the applicant told the activities director that she was a veteran with post-traumatic stress disorder (PTSD), for which she took legally prescribed medications that would cause her to fail a drug test. The activities director responded that the position did not involve tasks that would be impaired by those medications and that the testing facility would take copies of her prescriptions.

When the applicant offered her prescriptions to the testing facility, however, she was told it was unnecessary because they would call her later to verify any foreign substances. But she did not hear back from them, or from the retirement community. Six days later, she called the activities director and was told that the human resources (HR) department should have contacted her. After being transferred to HR, the applicant left a voicemail, expressing concern that she had not received a drug test result and reiterating that her medications would cause a non-negative result. The next day, her offer of employment was rescinded.

The Jury Verdict

The applicant filed a charge of discrimination with the EEOC, and the EEOC subsequently sued the retirement community, asserting a failure to allow the applicant to explain the non-negative result and a failure to employ her. A jury agreed, awarding the applicant $5,083 in back pay, $50,000 in compensatory damages, and $350,000 in punitive damages.

What the ADA Requires

As set forth in the EEOC’s “Enforcement Guidance on Preemployment Disability-Related Question and Medical Examinations,” the ADA prohibits employers from asking an applicant to answer medical questions or take a medical exam prior to making a conditional job offer. This specifically includes questions about prescription drug use.

If an applicant has voluntarily disclosed a disability or noted a need for accommodation during the pre-offer stage, however, the ADA permits an employer to ask limited questions about what type of reasonable accommodation would be needed now or in the near future—but not about the underlying condition or accommodation needs in the more distant future. (This is what happened here—the applicant voluntarily disclosed her PTSD and use of prescription medication. The activities director appropriately responded that the prescriptions should be provided to the testing facility to explain the non-negative result. Unfortunately, the employer then took a wrong turn.)

After a conditional job offer is extended but before employment begins, an employer is free to ask any disability-related questions and require any medical examinations of an applicant, so long as it does so for all applicants entering the same job category. The questions and/or examinations do not have to be job-related. An employer may reject an applicant because of the applicant’s answer or results, however, only where it is “job-related and consistent with business necessity.”

There are special rules around drug testing. Because the current use of illegal drugs is not protected under the ADA, drug tests are not considered medical examinations. Nonetheless, the results of drug tests can implicate disabilities, triggering coverage by the ADA. In particular, the EEOC’s guidance contains the following question and answer (Q&A), in the context of a post-offer drug test:

May an employer ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs?

Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.

Example: If an applicant tests positive for use of a controlled substance, the employer may lawfully ask questions such as, “What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?”

Although the language in this guidance sounds permissive (“may”), other EEOC guidance suggests otherwise. For example, in the EEOC’s guidance on the “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees,” the EEOC offers the following Q&A:

What if a drug test comes back positive because I am lawfully using opioid medication?

An employer should give anyone subject to drug testing an opportunity to provide information about lawful drug use that may cause a drug test result that shows opioid use. An employer may do this by asking all people who test positive for an explanation.

Accordingly, it seems that the EEOC believed that the employer in the current case had an obligation to ask those questions since the applicant had disclosed her use of legally prescribed medications that would cause her to fail the drug test. And this information was effectively a request for accommodation—to be excused from disqualification from employment based on the drug test results. The failure to ask those questions was, arguably, the employer’s first stumble.

Of course, once an applicant requests a reasonable accommodation, that may trigger the interactive process by which the employer may obtain more information (if necessary) to establish if there is a disability and to assess whether a reasonable accommodation can be provided without imposing an undue hardship on the employer. And here, the employer encountered a potential pitfall. Given that the activities director had stated that the responsibilities of the job would not be impacted by the applicant’s medication, it was hard to then argue that excusing the applicant from the drug test results would be an undue hardship.

Key Takeaways for Employers

This case reminds employers that there are specific rules with regard to the treatment of applicants under the ADA. The ADA and interpretive guidance promulgated by the EEOC delineate what employers can and cannot do if an applicant voluntarily discloses disability-related information before an offer is made, or if an applicant fails a post-offer/preemployment medical examination. And employers may not want to categorically disqualify an applicant who fails a drug test—particularly where the applicant has made clear that he or she may have a legal reason for doing so.

Ogletree Deakins’ Drug Testing Practice Group and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Drug Testing and Leaves of Absence blogs as additional information becomes available.

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