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.
