Thursday, August 28, 2014

Sixth Circuit: Drug Testing Could Be Prohibited Medical Examination or Inquiry Under ADA

On Tuesday, the Sixth Circuit issued an interesting decision about drug testing and medical inquiries under the ADA which involved a group of plaintiffs who did not have disabilities covered by the ADA.   Bates v. Dura Automotive Systems, No. 11-6608 (6th Cir. 8-26-14).  After a number of substance abuse issues at the manufacturing facility, the defendant employer began testing employees for any controlled substances which contained warnings about operating machinery.  Some of these substances were contained in lawfully prescribed medications for various medical conditions, although none of the plaintiffs claimed a disability under the pre-2008 ADA.  When an employee tested positive, they were to notify only a third-party facility of the medication being taken and the employees were warned to cease using that medication.  If the employee tested positive again, they were fired.  The plaintiffs filed suit claiming the testing constituted unlawful medical examinations and inquiries under the ADA.  The trial court ruled that the tests were both medical examinations and inquiries and submitted to a jury whether the employer was justified in making the request.  The jury ruled in favor of the plaintiffs and awarded compensatory and punitive damages of over $870,000.  On appeal, the Court remanded the matter for reconsideration as to whether the tests were medical examinations or inquiries, but affirmed the jury verdict that the employer lacked a business justification since there were other, less obtrusive means of improving workplace safety which the employer had not utilized.  On remand, a factual dispute remained as to whether there was any diagnostic component to the drug testing program.

According to the Court’s opinion, the employer conducted urinalysis testing of all employees for 12 substances, some of which are contained in prescription medications.   Positive results were referred to a Medical Review Officer. 
 
In reviewing the test results, MROs questioned employees about medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If the MRO determined that the employee had a valid reason for the non-negative result, including use of prescription medications, the MRO changed the final test result to negative.

So far, so good. No employees were ever asked about their medical conditions and the employer never knew what medications the employees took.  However, the contractor administering the test decided to ignore the MRO’s revisions, “opting instead to prohibit any employee use of machine-restricted drugs.”  The employees were then fired after testing positive again for a lawfully prescribed medication after being warned to discontinue the drug.  One of the plaintiffs was terminated following a random drug test.  No individualized assessment was made about the threat posed by the employee.

The plaintiffs claimed that the drug testing was an unlawful medical examination and inquiry and that the employer was using a qualification standard to screen out individuals with disabilities.  The second theory was rejected because the plaintiffs – who were not disabled – lacked standing to assert it. Bates v. Dura Auto. Sys., Inc. (“Bates I”), 625 F.3d 283, 285–86 (6th Cir. 2010). 

Under the ADA: “[t]he prohibition against discrimination  . . . shall include medical examinations and inquiries.” 42 U.S.C. §12112(d)(1).  Employers  may not “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  Id. at 12112(d)(4).   Nonetheless, “a test to determine the illegal use of drugs shall not be considered a medical examination.”  Id. at §12114(d)(1).

The employer’s drug testing program was not protected by the safe harbor in §12114(d)(1) because it encompassed a test for lawful drug use, not just illegal use of drugs.

The Court relied almost exclusively on the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations, which identifies eight factors to consider whether a test is a medical examination:

(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used.

The eighth factor is “whether ‘the employer [is] trying to determine the applicant’s physical or mental health or impairments.’” 

The trial court erred, among other things, by incorrectly believing that because a random urinalysis test for alcohol abuse was illegal, then a random urinalysis for lawful prescription drugs must also be illegal.  The Court examined the factors from EEOC enforcement guidance concerning medical examinations and noted that the tests were administered in a medical setting, by medical professionals and were not invasive.  However, the most important factors – whether the test was designed to reveal a physical or mental impairment or determine the employee’s health – were arguably weighted against the drug tests being medical examinations because there was conflicting evidence that the employer and its contractor did not inquire into the basis for the prescriptions and focused exclusively on whether they contained warnings against operating machinery.  As noted by the Court:

the test-design factor and the EEOC definition of medical examination would permit a reasonable jury to decide the matter in Dura’s favor. If one credits Dura’s explanation and the objective evidence shows its drug-testing protocol is unlikely to reveal employees’ medical information, then the testing does not qualify as a medical examination under the EEOC definition.
Moreover,
[w]hen asked at oral argument how Dura’s third-party administered test exposes information about employee health, the EEOC responded “it can,” noting that the presence of anti-seizure medication would divulge that specific condition. (O.A. at 34:40–35:00.) In the absence of specific evidence making this connection, we decline to elevate this possibility into the probability necessary for ruling on this issue as a matter of law. Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

                . . . viewing the evidence in its favor, we cannot say as a matter of law that Dura used FFS’s drug tests to seek information about plaintiffs-appellees’ medical conditions, or even that such revelations likely would result.

The Court applied a similar analysis as to whether the tests constituted prohibited disability-related inquiries.   The EEOC’s own guidance “defines disability-related inquiry as ‘a question (or series of questions) that is likely to elicit information about a disability.’”    The employer denied asking employees about their general prescription use.  Rather, it was only interested in drugs with warnings against operating machinery. The EEOC’s enforcement guidance did not contain blanket prohibitions against asking about drug use or even prescription drug use.  Accordingly, “a jury could reasonably conclude that [the employer] implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.” 

A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability. As noted above, plaintiffs-appellees point to no evidence showing that such a limited disclosure likely reveals information about a disability. . . .
The Court also reversed the trial court’s use of a jury instruction which necessitated that the drug testing contractor was the employer’s agent and its actions were necessarily the employer’s actions.  Instead, the Court concluded that the employer could use a contractor to shield itself from proscribed knowledge about the employee’s conditions.   While an employer may not contract with an entity to violate the ADA, a jury

may consider [the contractor’s] role in [the employer’s] drug-testing protocol to the extent that it bears on [the employer’s] intent and/or whether the testing would likely reveal plaintiffs-appellees’ physical and mental-health conditions to [the employer]. But the jury ought not be instructed to assume that, because [the contractor] obtained additional information during the testing protocol, [the employer] also sought to obtain that information. The district court’s instructions should so reflect  . . .

Despite the foregoing, the Court agreed that if the drug tests were medical examinations or inquiries, then the jury was entitled based on the evidence presented at trial to find that the employer lacked a job-related justification or business necessity.
The EEOC enforcement guidance explained that: 

a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
The employer bears the burden of proof on this issue.  The Court noted that there were disputed facts, but the jury was entitled to give greater weight to the plaintiff’s evidence:
[The employer] presented some evidence at trial supporting its drug testing—e.g., testimony and video evidence of the “congested” nature of the Lawrenceburg facility and numerous hazards there, including machinery, glass, chemicals, and forklifts. Nonetheless,  plaintiffs-appellees also presented evidence consistent with a reasonable jury conclusion that [the employer’s] showing fell short of the high standard for job relatedness and business necessity. For example, [one manager] testified that Dura neglected to make individualized risk determinations of jobs, tools, and work stations in the facility. [Two managers] also admitted that they failed to consider the plaintiffs’ abilities or the risk that they posed by taking medications. The jury could infer from this evidence that [the employer] lacked a reasonable belief, based on objective evidence, that plaintiffs-appellees’ medications impaired their abilities to do their jobs or made them dangerous to others. Further, [a manager] testified that employees had unrestricted access to hazardous parts of the facility and were not required to wear hard hats. Indeed, the video of the facility showed individuals with loose clothing, jewelry, and long hairstyles, in apparent violation of [the employer’s] safety policies. This evidence reasonably supports the conclusion that [the employer] could have advanced its interest in employee safety by other, less intrusive means.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.