Employee Drug Testing for Lawful Drug Use

May an employer implement a policy prohibiting employees from using legally marketed medications that had been lawfully prescribed if such use might adversely affect safety, company property, or job performance?

Facts of the Case

Located in a southern state, a firm that manufactured glass window units for cars, trucks, and busses concluded that one of its facilities had a higher rate of workplace accidents than comparable plants. Leadership of the company suspected that this might be due to use of either legal or illegal drugs in the workplace. Accordingly, the firm adopted a policy that prohibited employees from using legal prescription medications if their use adversely affected safety, company property, or job performance.

Contracting the services of an independent drug testing concern, a procedure was established to screen employees. This approach screened employees for use of 12 substances, including the active pharmaceutical ingredient found in lawfully marketed and used medications such as Lortab, Oxycodone, and Xanax. The targeted substances were those believed to cause dangerous side effects for machinery operators and assembly line workers.

Seven employees tested positive for 1 of the 12 prohibited substances. All 7 had lawful prescriptions covering use of the medication that showed up in the drug screen. The employer gave all 7 employees an opportunity to work with their prescribers to transition to medications that did not appear on the prohibited list. The employer refused to honor letters from the prescribing physicians averring that that the employees’ job performance would not be affected by the medications being used. The employees were suspended for 30 days following a positive test result in the initial screening. When the employees continued using the medications, they became former employees: the employer terminated their employment.

The group filed a federal lawsuit against the employer alleging that its actions violated the Americans with Disabilities Act (ADA). Both parties, the group of employees and the employer, asked the US District Court to grant summary judgment. Granting a motion for summary judgment is appropriate when the court concludes that there remains no genuine issue of material fact and a decision can be made solely on the basis of the applicable law.

Six of the 7 former employees were found not to be disabled using the criteria in the ADA. The employees were claiming that the drug testing constituted an impermissible medical examination, so the court focused on the relevant provision in the federal statute. The trial court denied the employees’ motion for summary judgment, concluding that there was a material fact in dispute; that is, did the employer’s drug testing policy and practices fall under an exception in the statute applicable when such testing is job related and consistent with business necessity.

The employer then asked the trial court to determine whether individuals must be disabled in order to pursue such legal claims under the ADA. The trial court judge reiterated his opinion that individuals need not be disabled to pursue such claims, while noting that courts across the country have had a difference of opinion on that point. That framed the issue for appeal to the applicable US Circuit Court of Appeals—must an individual be disabled to pursue a claim under the provision of the ADA being used in this case?

The Court’s Ruling

The federal appellate court panel disagreed with the US District Court judge. Their ruling was that an individual must indeed be suffering a disability to pursue such a claim.

The Court’s Reasoning

The court first looked at the broad overview of the statute, concluding that the ADA is primarily aimed at prohibiting discrimination against a “qualified individual with a disability because of the disability.” Although non-disabled individuals may bring claims under some provisions of the statute, the specific section at issue in this case only applies to individuals with disabilities. Another US Court of Appeals covering a different geographic part of the country had reached the same conclusion in a prior case.

The court noted that the wording of the provision in question was quite clear, so it quoted an earlier decision from the US Supreme Court: “When a statute speaks with clarity to an issue, judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” The judges did note that there were some provisions in the ADA that applied to non-disabled individuals, but the section at issue here was not one of those.

The outcome was that the case was sent back to the US District Court with a directive that the claims of the 6 former employees who were not disabled were to be dismissed. The one other original plaintiff, the one who did meet the criteria in the ADA to be considered disabled, had his claim survive to be considered at the trial court level.

Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.