Refusal to Hire After Positive Pre-Employment Drug Screen May Violate ADA

An employer must continue to defend a charge that it improperly refused to hire an applicant who tested positive for amphetamines on his pre-employment drug screen, the 4th U.S. Circuit Court of Appeals held. John Lisotto claimed that New Prime Inc., a Springfield, Mo.-based trucking business doing business as Prime, violated the Americans with Disabilities Act (ADA) by failing to hire him, despite a doctor’s note establishing that the amphetamine was prescribed for a medical condition and that Lisotto was medically qualified for the position.

Lisotto, a resident of South Carolina, applied for employment as a truck driver with Prime. Lisotto had experience as a truck driver and Prime’s recruiter quickly approved Lisotto to attend Prime’s orientation program. The recruiter explained that Prime would hire Lisotto contingent on a successful orientation, and the results of his drug screen and physical exam.

Lisotto suffered from what was “believed to be or diagnosed as narcolepsy.” To treat the disorder, he had a long-standing prescription from his personal physician for Dexedrine, a type of amphetamine. Prior to his drug screen, Lisotto presented a letter from his physician to Prime’s physician. The letter explained his use of Dexedrine and stated that the prescribed medication would not adversely affect Lisotto’s ability to safely operate a commercial motor vehicle, as he had for many years driven commercial trucks safely while taking Dexedrine and had experienced no problems.

Despite the letter from Lisotto’s physician, Prime administered a drug screen. The drug screen was positive for amphetamines. Prime’s physician instructed Lisotto to switch to a different approved medication to treat his sleep disorder (a process that would take six weeks) to be considered for future employment with Prime.

Lisotto began the process of switching to the new medication as directed by Prime’s physician. After he successfully switched to the new medication, Lisotto called Prime to resume the hiring process; however, Prime refused to hire Lisotto, citing his positive drug screen.

Lisotto asked for reconsideration, but instead, Prime’s Medical Review Officer (MRO) made a written determination that Lisotto’s sleep condition was a disqualifying condition.

Lisotto filed suit against Prime under the ADA, and Prime countered with a motion to dismiss, claiming that Lisotto failed to exhaust his administrative rights. Specifically, Prime pointed to the Federal Motor Carrier Safety Act (FMCSA), which requires that where there is “disagreement between the physician for the driver and the physician for the motor carrier concerning the driver's qualifications,” the Department of Transportation (DOT) makes the determination of whether the driver is medically qualified under the FMCSA. Since there was disagreement between Lisotto’s physician and Prime’s MRO on whether Lisotto’s condition medically disqualified him, the U.S. District Court for the District of South Carolina agreed with Prime that the DOT should have made a determination of Lisotto’s qualifications.

On appeal, the 4th Circuit determined that because there was no disagreement regarding Lisotto’s qualifications prior to Prime denying him employment, the FMCSA provision was not applicable to the situation. The court also pointed out that Lisotto’s claim was based on Prime’s failure to hire him based on his drug test, not on the disagreement between his physician and the MRO. Although the court did not determine whether Prime actually violated the ADA, the court did express its opinion that Prime wrongfully subjected Lisotto to “hurdle-jumping.”

Lisotto v. New Prime Inc., 4th Cir., No. 15-1273, (May 03, 2016).

Professional Pointer: HR practitioners should keep in mind that a positive drug screen does not call for automatic disciplinary action. If an applicant or employee informs you that he or she has a prescription for the medication that caused the positive result, and he or she is otherwise qualified, adverse action against the applicant or employee could implicate the ADA.

Christine S. Coleman is an attorney with McMahon Berger PC, the Worklaw® Network member firm in St. Louis.