Employers must use drug tests in compliance with the ADA. The EEOC identifies two different types of drug tests. There is a drug test for illegal drugs, normally known as the five panel test. And a drug test for illegal panels and additional legal drug panels, normally known as the 9 or 10 panel test.
And there are two different times you can administer a drug test i.e. pre-offer and after a conditional job offer.
We have a Word version of DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) here enforcement-guidance-disability-related-inquiries-and-medical-examinations-of-employees-under-the-americans-with-disabilities-act-ada.
A pre-offer drug test can only include a test for the five illegal drug panels. (See Page 6) There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:
- tests to determine the current illegal use of drugs;
A pre-offer drug test cannot include testing for legal drug panels. This is because a drug test for legal panels is considered a medical examination. As such it can only be administered after a conditional job offer has been extended. A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. (See Page 4)
There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:
- tests to determine the current illegal use of drugs;
- physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure);
- tests that evaluate an employee’s ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;
- psychological tests that measure personality traits such as honesty, preferences, and habits (See Page 6)
Employers are allowed to drug test for legal drug panels in limited circumstances:
In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. (See page 11)
The Equal Employment Opportunity Commission (EEOC) recently filed suit against a car dealership alleging that its drug testing policy did not contain exceptions for qualified persons with disabilities. The lawsuit, EEOC v. Bell Leasing, Inc., Civil Action No. 2:16-cv-02848, was filed on August 25, in the U.S. District Court for the District of Arizona. The EEOC alleges the employer made a job offer to an applicant contingent upon a successful drug test. When the applicant tested positive for a prohibited substance, the employer rescinded the offer. The EEOC alleges that the positive test was the result of the applicant’s use of a prescription drug in accordance with her doctor’s orders, but the employer refused to consider her medical evidence. The EEOC’s complaint seeks monetary and punitive damages, injunctive relief, and Americans with Disabilities Act (ADA) training.
In the EEOC’s press release, it emphasized that even when employers are legally permitted to conduct drug tests, they must accommodate qualified persons with disabilities. If the failed test resulted from the legal use of a prescription drug and the drug will not prevent the employee from performing the essential functions of the job, the employer will likely need to accommodate the employee’s drug use. While it is much too early to tell who will prevail here, the lawsuit serves as an indicator of the issues that the EEOC considers important when analyzing employer’s drug testing policies.
The employer failed to establish a link between performing the essential functions of the job and why someone on a legal drug cannot perform those essential functions. We have a prior blog post on how to properly conduct drug tests here http://preemploymentscreen.com/wp/drug-testing-done-correctly/
