The Americans with Disabilities Act was enacted in order to end discrimination against individuals with disabilities.

As a means to end discrimination in employment, the ADA limits an employer’s ability to ask questions that relate to an applicant’s disability status throughout the three phases of the employment process: pre-offer, post offer but pre-employment, and employment. During the pre-offer stage, an employer may ask about the ability of an applicant to perform job-related functions, but may not ask any questions that are likely to provide information about a disability. Following a positive pre-offer drug test, however, an employer may ask about lawful drug use or other possible explanations for the positive result. But there are limits – disability related questions are still prohibited.

The fuzzy line between what is proper and what is not was addressed in a recent court decision. In that case, when the applicant’s drug test came back positive for barbiturates, the man who would be the applicant’s supervisor informed him of the test results and asked him to get his prescription if he had one. The supervisor then called the independent Medical Review Officer who was responsible for receiving and interpreting the results from the drug testing facility, and passed the phone to the applicant. When answering the MRO’s questions about his use of barbiturates, the applicant stated that he had had epilepsy since he was two, took barbiturates to control it, and the amount of his dosage. Although the supervisor did not ask any questions, he stayed in the room during the phone call and heard the applicant’s responses to the MRO’s questions. The MRO later reported to the employer that the drug test had been cleared. The applicant, however, didn’t get the job, and sued the employer for violation of the ADA. The court held that even though the supervisor had asked no questions, his presence in the room during the telephone conversation could be interpreted as an intentional attempt likely to elicit information about a disability.

This case teaches us that good business practices will provide the best protection from employee lawsuits. All communications with the applicant during the pre-offer and post offer but pre-employment phases should be controlled at all times by a professional trained in the requirements and limitations of the ADA. In addition, there should be one individual within your organization responsible for receiving and protecting the confidentiality of drug test results. The human resources professional should have been the contact with the MRO and would have known it was improper to stay in the room while an applicant was discussing his legal drug use.

This case is one of many that reminds us of the complexities in dealing with health or medical issues in the employment arena.

By Rebecca M. Fowler, rfowler@dsda.com