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A federal court ruled that pre-employment drug screens for illegal drugs do not constitute medical examinations under the Americans with Disabilities Act (ADA).
The U.S. District Court for the Western District of Pennsylvania held on Sept. 15, 2015, in
EEOC v. Grane Healthcare that the ADA’s prohibition on pre-offer medical screens does not include testing for illegal drugs.
Under Title I of the ADA, “any employee who is currently engaging in the illegal use of drugs” is not considered “a qualified individual with a disability” entitled to protection from discrimination. The statutory definition of the term “illegal use of drugs” excludes “the use of a drug taken under supervision by a licensed health care professional.”
“A pre-offer drug test may not be administered under the guise of testing for illicit drug use when in fact the results are used to make employment decisions based on both legal and illegal drug use alike, “said Judge Kim Gibson.
In other words, in order for a drug test to be considered a medical examination under the ADA, a claimant must show that the drug test in question was not administered to determine the illegal use of drugs, and that the drug test did not, in fact, return a positive result for the illegal use of drugs, said Kathryn Russo, a shareholder in the Long Island, N.Y., office of Jackson Lewis and an expert on the legal issues implicated in workplace drug and alcohol testing. “In this case, the defendants presented credible testimony at trial to satisfy the court that its only intent in performing pre-offer drug testing was to determine whether the applicants were using illicit drugs,” she said.
Beth Lengle, vice president of nursing for the defendant Grane, oversaw the employment processing of the staff in question. She testified at trial that when an applicant tested positive for a controlled substance, she would cross-check the positive results for controlled substances with the applicant’s list of medications. It was only at this point that she would discover whether an applicant was taking a lawfully prescribed medication. The drug screen itself did not reveal whether or not an applicant was taking a lawfully prescribed medication.
While the Equal Employment Opportunity Commission argued that the majority of applicants had valid prescriptions for drugs, the court found that Grane’s “protocol to administer drug screens and then, if a positive illegal drug was indicated, to check the list of drugs for which the applicant had a valid prescription, is acceptable under the ADA.”
Roy Maurer is an online editor/manager for SHRM. Follow him
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