The Employer's Legal Resource: Employer's Drug Testing for Prescription Medications Arguably May Violate ADA
Dura Automotive Systems, Inc. ("Dura") manufactures glass windows for cars, trucks, and buses in its Lawrenceburg, Tennessee, facility. In response to reports of employees' drug and alcohol abuse and various incidents of property damage and workplace accidents attributable to employees' use of illegal and prescription drugs, Dura implemented a new substance abuse policy that included employee drug testing. Pursuant to this new policy, Dura began testing (via urinalysis) all employees at its manufacturing facilities for twelve specific substances that may be found in both illegal drugs and/or prescription medications: amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and propoxyphene. Employees who tested positive for any of these twelve substances were questioned about medical explanations for the designated substances being found in his/her system. Those employees who cla imed the offending substances were contained in properly issued prescription medications were required to bring their medications to FFS, the third party hired by Dura to administer the drug tests. FFS identified those prescriptions that were packaged or labeled with warnings about operating machinery while taking such medications and reported those to Dura. Dura then informed affected employees that it would terminate their employment if they continued to use these medications that had machine-operation warnings.
A group of six Dura employees terminated after drug retests came back positive based on their continued use of such prescription medications filed a federal lawsuit against Dura under the Americans with Disabilities Act ("ADA"). The employees alleged that Dura subjected them to unlawful drug testing to determine whether they took lawfully prescribed medications, which actions amounted to a medical examination or disability inquiry in violation of Section 102(d)(4) of the ADA, 42 U.S.C. s 12112(d)(4). Section 102(d)(4) prohibits employers from requiring medical examinations or disability inquiries of an employee, regardless of whether such employee has a disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. The Sixth Circuit ruled that Dura arguably performed a "medical exam" under Section 102(d)(4)(A) and therefore the issue should have been decided by a jury, reversing the district court' s grant of judgment as a matter of law in favor of employees and remanding for trial while upholding the jury's finding that Dura's drug tests were neither job related nor a matter of business necessity.
As a threshold matter, the Sixth Circuit noted the ADA's prohibition against employer medical examinations applies to all employees regardless of whether they have a disability, therefore, the employees' claims in this case may proceed despite the fact that none of them are actually disabled. Thus, the only issue considered by the Court is whether Dura's drug testing protocol constituted a "medical examination" or "disability inquiry" under Section 102(d)(4). Although the ADA elsewhere specifically exempts testing for "illegal use of drugs" from the prohibition on medical examinations, the Court disregarded such provision as inapplicable in this case because Dura's screening for prescribed medications exceeded those parameters. Because the terms "medical examination" or "disability inquiry" have not otherwise been specifically defined in the ADA, the Sixth Circuit invoked the EEOC's enforcement guidance (which provides definitions and illustrative examples, none of which address this specific type of drug testing) as a persuasive aid in resolving the ambiguity in this case. The EEOC's enforcement guidance (available here) defines "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health," and identifies several factors that may be considered in making this determination: (1) whether the test is administered by a healthcare professional; (2) whether the test is interpreted by a healthcare professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and (7 ) whether medical equipment is used. The Sixth Circuit considered the first, second, sixth, and seventh factors to tip the scales toward considering Dura's drug testing to be a medical examination because FFS administered urine-based tests in a quasi-medical setting, with medical equipment, and health professionals interpreted the results. The Court stated that the third factor appears inapplicable to the circumstances of this case and the fourth factor offers little guidance; though a urine sample certainly intrudes on a private bodily function to some extent and other EEOC guidance suggests that "drawing of blood, urine, or breath" may demonstrate invasiveness, courts have recognized in other contexts that urine tests "typically are not invasive of the body."
The third factor (regarding whether the test is designed to reveal an impairment or the employee's health) was considered the most critical in the Sixth Circuit's analysis. The Court's lengthy analysis of this factor expressly noted that "the uncovering of health defects at an employer's direction is the precise harm that § 12112(d)(4)(A) is designed to prevent." Such an inquiry involves both subjective and objective considerations and although an employer's purpose is not determinative, it should be considered in the larger factual context of a particular test's typical uses, but "when an employer's purported intentions mismatch the predominant purpose and design of a particular test or assessment...those intentions are accorded less weight and significance in the analysis." In this case, Dura denied that the purpose of its drug testing protocol was to reveal employees' impairments or health conditions. The Sixth Circuit found Dura's argument at least somewhat convincing, noting that it was "far from a free peek into an employee's medical history" because Dura abstained from otherwise asking employees about their medical conditions, and that the employees failed to offer any evidence about exactly how the drug testing revealed information to Dura about their medical conditions – the urine test itself revealed only the presence of certain chemicals and FFS's post-test reporting disclosed to Dura only the machine-restricted medications, which included a number of common prescription pain relievers, and from which Dura would struggle to discern any specific medical conditions. The Sixth Circuit also highlighted "the narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs" of Dura's drug testing protocol, which "reflect[ed] Dura's efforts to avoid obtaining information about employees' medical conditions and to avoid discriminating against all employees who take prescription drugs." The Court noted, however, that much of the resolution of these issues ultimately depended on Dura's credibility, and inconsistencies between Dura's written and actual drug-testing policies and/or disparate treatment of individual employees could lead a jury to reject Dura's explanation as a pretext for its true unlawful motive of screening out potentially disabled employees. As such, the Sixth Circuit concluded that these issues involved a very fact-sensitive inquiry inappropriate for judgment as a matter of law. The Court stopped short of saying such a determination would never be appropriate for resolution of a matter of law or espouse any situations in which it would do so; such conclusion was limited to the specific facts of the case before it.
With regard to the related but distinct issue of whether Dura's drug testing procedure amounted to a "disability inquiry," the Sixth Circuit likewise concluded that ultimate resolution of this matter turns on contested issues of fact. The Court cited both EEOC guidance and case law which declares that asking an employee if he/she is taking any prescription drugs (or did so in the past) is an impermissible disability inquiry, but clarified that such unlawful inquiries are limited to those which are designed to or did elicit information about employees' disabilities and stated that Dura's third party administered drug test requiring positive-test employees to reveal only machine-restricted prescription medications to their employer does not by its nature elicit disability-related information and differs from directly asking employees about prescription drug usage. The Sixth Circuit wrapped up its analysis by noting that "Dura's drug testing protocol pushes the boundaries of the EEOC's medical-examination and disability-inquiry definitions. It certainly goes farther than what the ADA's drug-testing exemption specifically permits...but does not clearly fit the EEOC's definitions and examples of prohibited conduct," and concluded that a reasonable jury could have decided these disputed factual issues either way.
By Rebecca D. Stanglein, firstname.lastname@example.org