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Legal drug, legal drug test … and a legal mess for the employer

by on
in Hiring,Human Resources

Employers routinely require applicants to whom they have extended job offers to take tests for illegal drugs. If they pass, they get the jobs. If they don’t, employers can legally rescind the offers.

But here’s a case in which an employer completely mishandled this everyday procedure, and now will probably pay a high price.

R. Sue Connolly successfully interviewed for a position as vice president at First Personal Bank. The bank sent her a letter offering her a job, subject only to her passing a pre-employment drug test.

Before Connolly took the drug test, she told the bank she had recently undergone a medical procedure, and that medications involved might show up on the test results. Indeed, the test came back positive for phenobarbital. Upon seeing the test results and without any further investigation, the bank called Connolly and rescinded the offer.

The doctor’s verification

Connolly reminded the bank president that she had disclosed that she was on a variety of medications for various medical conditions. When she offered to have her doctor verify that he had prescribed phenobarbital for her, the bank’s president refused to listen and told her the decision was final.

Undeterred, Connolly provided a letter from her doctor explaining the nature of the lawfully prescribed medication she was taking at the time of her drug test. The bank returned the letter without opening it. 

Although she never claimed to have a disability, Connolly sued the bank for violations of the ADA. She claimed the drug test amounted to an impermissible medical examination. The bank asked the court to dismiss the case on the grounds that the drug test was not a medical exam.

The court refused to dismiss the case. (Connolly v. First Personal Bank, No. 94248, ND IL, 2008) 

First, the court found that, while an employer may require an applicant who has received an offer of employment to take a medical exam, it may do so only if—among other caveats—it does not use the results to discriminate on the basis of the applicant’s disability. 

Drug test as medical exam

But, how did this test for illegal drugs qualify as a medical exam? The court found that an employer is not entitled to the benefit of the ADA’s exemption for testing for illegal drugs when the test shows the presence of legal drugs and the employer makes an employment decision based on those results. 

The judge said, “The exemption for drug testing was not meant to provide a free peek into a prospective employee’s medical history and the right to make employment decisions based on the unguided interpretation of that history alone.”  Here, the bank refused to consider Connolly’s doctor’s explanation of her treatment. The bank could have conducted a further medical examination in order to make a traditional evidence-based assessment on how Connolly’s prescription drug regimen might affect her ability to function effectively in her job. It didn’t.

ADA protection without disability

How did the ADA apply when Connolly did not claim that she had a disability and the bank did not use any disability as a basis to withdraw its offer?

The judge found that Connolly was protected under the ADA when the bank conducted an impermissible pre-employment disability-related inquiry whether she claimed to be disabled or not.

It would make little sense to require Connolly to have had to demonstrate that she had a disability to protect herself from the bank using the drug test to essentially inquire whether she had a disability. Thus, Connolly did not have to allege that the bank withdrew its offer because she was disabled or because it perceived her to be disabled.

Justifying test-related actions

Employers have the right to condition employment decisions on the results of drug tests for illegal drugs. There is also no doubt that employers may use drug tests as employment-related “medical examinations.” But, many courts will find that an employer cannot use results of a drug test showing the presence of properly prescribed legal drugs to make an employment decision unless the employer uses the results to fairly determine whether the employee can perform her duties.

It’s extremely important for employers that conduct drug tests to understand that courts will not allow them to rescind a job offer or fire an employee just because the test results are positive for some drug.

If an employer is concerned that a legal drug may cause an applicant who has received a job offer (or an existing employee) to be unable to perform the job’s functions, then it should actually make that analysis, not simply make an assumption.

The employer should also maintain records of that analysis, so it can show a court that it made the right decision for the right reasons.

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