The Americans with Disabilities Act (“ADA”) makes it unlawful for an employer to either require its employees to undergo medical examinations or make disability-related inquiries that cannot be justified as “job related and consistent with business necessity.” The statute, however, expressly provides that testing an employee for illegal drug use is not a “medical examination” that must be justified under this standard. But what about an employer, who, because of safety concerns, requires employees to be tested for substances for which the employee has a valid prescription? Does such a test constitute a medical examination or a disability-related inquiry? In Bates v. Dura Automotive Systems, Inc., the United States Court of Appeals for the Sixth Circuit recently undertook to provide guidance on this issue. The Court concluded that whether testing for prescription drugs constitutes a medical examination or a disability-related inquiry for ADA purposes depends on the specific facts of the case at hand and, ultimately, may be an issue for a jury to resolve. It is clear that this is an area where employers must tread carefully. The difficulty of implementing a prescription drug testing program that will comply with the ADA suggests that such testing should be used only as a last resort when other safety measures have proved insufficient.
The employer in Bates, Dura Automotive systems (“Dura”), manufactures windows for motor vehicles. After receiving reports of workplace accidents attributable in part to prescription drug use, Dura implemented plant-wide drug testing for 12 substances, some of which are found in prescription medications. The testing was administered by an independent company, Freedom From Self (“FFS”), which determined if illegal drug use was involved or if a “positive” test result was caused by a medication for which the employee had a valid prescription but one that came with machine-operation warnings. Dura told employees with such prescriptions they would be terminated if they continued to use their medications. After subsequent retesting, the employees who had continued taking their medications were, in fact, terminated.