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.
Those employees brought suit in federal district court under the ADA. After hearing all of the evidence, the trial court ruled that, as matter of law, the drug tests administered to the plaintiffs were medical examinations and disability related inquiries within the meaning of the ADA. The court submitted to the jury the issue of whether the employer had proven that its testing program was job related and consistent with business necessity. The jury found against Dura on that issue and awarded the plaintiffs compensatory and punitive damages.
The Sixth Circuit’s Opinion
Was the drug test a medical examination? Using as a reference point the Enforcement Guidance on Disability-Related Inquiries and Medical Examinations issued by the Equal Employment Opportunity Commission (“EEOC”), the Court of Appeals held that the most critical factor bearing on the issue was whether the drug test was “designed to reveal an impairment or the employee’s health.” In other words, did the test have diagnostic purpose? The Court held that the employer had presented enough evidence for the jury to find in its favor on that issue. The Court noted that a test result revealing only that an employee had ingested certain chemicals, which in this case were mostly pain killers, would not necessarily reveal anything about the employee’s medical condition or even an impairment for the test to qualify as a medical examination under the EEOC’s Guidance. Moreover, Dura claimed that FFS disclosed to it only the names of employees who had prescriptions with machine-operation warnings and, even as to those employees, disclosed no information about their medical conditions. Nevertheless, the Court ruled that the plaintiffs should be given an opportunity to show that the employer did in fact ask about and receive medical information and that disclosure of certain prescription medications would reveal something about the employee’s medical condition. Thus, the Court remanded the issue to the district court for a jury trial.
Was the drug test a disability-related inquiry? On this issue, the Court noted that the EEOC Guidance prohibits employers from asking about legal drug use “if the question is likely to elicit information about a disability.” But, the Court explained that a drug testing program administered by a third party that reports only the use of medications with machine-operation warnings does not necessarily reveal to the employer disability information about the employee using the medication. Again, what information was in fact disclosed to the employer here was for the jury to decide, and the trial court erred in ruling against Dura on the issue.
Was the drug testing program job related and consistent with business necessity? The Sixth Circuit upheld the jury’s verdict against Dura on this issue. Noting that an employer must meet a “high standard” of demonstrating the job relatedness and business necessity of its testing program, the Court ruled the jury’s verdict was supported by evidence that the employer failed to make “individualized risk determinations of the jobs, tools, and work stations” involved and “failed to consider the plaintiffs’ abilities or the risk that they posed by taking medications.” The evidence also suggested that the employer was lax in enforcing its safety policies and could have satisfied its safety concerns by means less intrusive than dug testing.
What were the damages to which plaintiffs were entitled? The Court held that subjecting employees to medical examinations and/or disability-related inquiries without adequate justification constitutes “discrimination” under the ADA without the need for plaintiffs to show they were in fact disabled or perceived to be so. As the ADA incorporates by reference the damages provisions of Title VII of the Civil Rights Act of 1964, the plaintiffs were entitled to seek the full range of the damages authorized by those provisions (back pay, compensatory damages, punitive damages). The Court held, however, that Dura was entitled to a new trial on punitive damages. The Court reasoned that in awarding punitive damages the jury may have been influenced by the trial court’s erroneous ruling that the employer’s drug testing program was covered by the ADA, an issue which the jury should have decided. Accordingly, the Court ruled that even if on re-trial the jury were to decide against Dura on the medical examination/disability-related inquiry issue, Dura should be give the opportunity to prove that it intended its drug testing policy to comply with the ADA and thus not liable for punitive damages.
Bates teaches that employers who believe it is necessary to test their employees for the use of prescription medications must make sure that its testing is based on particularized job and workplace assessments of potential safety hazards and on an employee-by-employee assessment of the risks posed by the medications at issue. In addition, the drug testing itself must be carried out in such a way, preferably by an independent third party, to insure that no information is disclosed to the employer about the medical conditions of the employees being tested. The risk of ADA violations resulting from testing for prescription drug use suggests that such testing should be used only as a last resort after more conventional safety practices have proved not to be satisfactory.
For questions concerning this blog or drug testing issues in general, please feel free to contact any attorney in the Gibbons Employment & Labor Law Department.