Ignoring a Failed Drug Test as a "Reasonable Accommodation?"
Posted on 10/28/2022 at 04:14 PM by Russell Samson
On September 21, 2022, the EEOC announced that it was suing a Florida senior living residence, and the entity which owned it, for disability discrimination. The EEOC stated that the facility, “Revoked Applicant’s Job Offer After Her Legally-Prescribed Medications Prevented Her From Passing a Required Drug Test.”
I found the press release a bit sloppy and skimpy on the facts. During the interview process (alleges the EEOC), an applicant had told the employer that she was a veteran with PTSD, and that she took a prescribed medication for the PTSD, which medication (she reportedly told the employer during the interview, again according to the EEOC) would cause her to fail the required pre-employment drug test. The EEOC’s press release made the general statement that the defendants had violated the ADA’s obligation to make a reasonable accommodation to a person with a disability when they revoked an offer of employment based on a failure to have a negative pre-employment drug test.
This statement sent shivers down my spine – and questions racing through my head. Seeking more information, I got a copy of the court-filed Complaint. As an attorney, I am aware that sometimes assertions made in court filings are less than accurate. For me, the Complaint clarified one very important point, and answered one critical question.
In Paragraph 73 of the Complaint, the EEOC identifies the “accommodation” that the applicant sought / that the EEOC asserted should have been made. The EEOC contends in its Complaint that the employer’s drug testing policy should be modified to provide the applicant an opportunity, “to show that non-negative results were due to legal, prescription medications.”
I practice labor and employment law in Iowa. Perhaps in recognition of the numerous and often complex provisions with which Iowa employers must comply, a couple of years ago, the Iowa Court of Appeals described the Iowa private drug testing statute as “byzantine.” While not disagreeing with the characterization, for applicants for employment, the Iowa drug testing statute has a few simple guideposts.
- If there is testing, any positive drug test must be confirmed by a SAMSHA certified or IDPH approved laboratory.
- The second, confirmatory drug test must use a different chemical process than was used in the initial screen, which “shall be a chromatographic technique such as gas chromatography/mass spectrometry, or another comparably reliable analytical method.”
- Under Iowa law, the individual subject to testing must be given an opportunity to provide “any information which may be considered relevant” including prescription and nonprescription drugs.
- The Iowa law requires that before the results are reported to an employer, a medical review officer (as defined in the Iowa law) must review and interpret not only the quantitative and qualitative test results, but also any information provided by the individual.
While Iowa’s statute does not provide any person or agency with substantive rule-making authority, the United States Department of Transportation has extensive regulations on drug and alcohol testing. Those regulations include 49 CFR Subpart G - Medical Review Officers and the Verification Process. Of particular interest to this subject matter is 49 CFR § 40.131(a) – a detailed explanation of what a federal MRO is to do when it receives a “non-negative” drug test report:
(a) When, as the MRO, you receive a confirmed positive, adulterated, substituted, or invalid test result from the laboratory, you must contact the employee directly (i.e., actually talk to the employee), on a confidential basis, to determine whether the employee wants to discuss the test result. In making this contact, you must explain to the employee that, if he or she declines to discuss the result, you will verify the test as positive or as a refusal to test because of adulteration or substitution, as applicable.
I returned back to the EEOC’s federal court Complaint: I was seeking information on the “defendant employer’s” drug testing policy, and specifically seeking information on what exactly happened in that case.
The EEOC described the employer’s drug testing policy in Paragraphs 34-40 of the Complaint. Summarily, the employer uses on off-site third party to collect specimens and administer a “rapid response” drug test. I am reporting the allegations of the EEOC, and so acknowledge that the statements may not be accurate -- although it is hard to believe that an attorney complying with Fed. R. Civ. P. 11 could get these wrong. The EEOC contends that the result of the “rapid response” test is available within 15 minutes; the result is either “negative” or “non-negative.” Again according to the Complaint, a “non-negative” result could mean not only that there is a positive for a drug or a drug metabolite, but also could mean that the sample is adulterated, substituted (?) or invalid. The EEOC states in the Complaint that all non-negative results are sent to a named-in-the-Complaint third-party laboratory (which, while not mentioned in the court-filed complaint, is a name I recognize as being SAMSHA-certified), “and examined by a Medical Review Officer to determine the cause of the non-negative, including whether the donor was taking illicit drugs or legally prescribed medication.”
I read that allegation of the Complaint, and then went back and re-read the allegation on what “accommodation” the EEOC asserts the employer should have made, and I scratched my almost bald head.
The quotation above is the only time “Medical Review Officer” (or MRO) appears in the Complaint. This appears to be a (with apologies) HUUUUGE hole.
- Did the third party not send the test results to the designated laboratory / MRO for review? or
- Did the MRO attempt to speak with the applicant / donor and she declined to speak with the MRO - - resulting in the laboratory test being reported to the employer? or
- Did the applicant provide the information to the MRO, but the “prescription medication” was for – say – marijuana? See 49 CFR §40.137. or
- Given the focus of the EEOC on “non-negative” rather than “positive,” was there a problem with the specimen – inconsistent with human urine, adulterated, etc.? or
- An MRO is to look at both the qualitative and the quantitative laboratory results: A prescription is not a license to take as much as one wants. One can have a prescription for a medication, but be taking an amount different than prescribed. [49 CFR § 40.137 (e)(3): “Use of the substance can form the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose.”]
Because in the Complaint the EEOC describes a process which specifically includes an MRO review of the laboratory results, one wonders precisely what the EEOC is seeking when it asserts that the company it is suing should have “reasonably accommodated” the applicant by permitting her “to show that non-negative results were due to legal, prescription medications.”
I certainly hope that the EEOC is not asserting that the employer here should have relied on unqualified personnel – that is, someone other than a MRO – to make the determination that a “non-negative” drug or alcohol test result is “due to legal, prescription medications.”
Some current media are reporting on allegations of governmental agency over-reaching and abuse. One would think that if the EEOC had gone through the investigation and conciliation efforts asserted in the Complaint, the EEOC would be able to provide some information / allegation as to what happened at the “MRO review” process the EEOC itself alleges is part of the defendant employer’s drug testing protocol. Was the specimen inconsistent with human urine? Was the amount found in the specimen inconsistent with what would be expected if the drug were taken in an amount prescribed? Was there a substance found in the specimen in addition to that which was prescribed? Did the applicant refuse to talk to the MRO at all?
Or did the MRO drop the ball and not make any call to the applicant, or to any donor? Under this non-DOT drug testing policy, what is required – what is expected – of the “MRO”?
Employers are reminded of the importance of periodically checking that the drug testing policy the employer wrote (hopefully with the assistance of competent counsel) is being applied as written.
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