A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury verdict for the plaintiffs. The jury had found that the examination and inquiries were not “job-related and consistent with business necessity,” as required by the ADA.
Rejecting Dura’s arguments that the punitive damage award should be set aside, the court cited testimony that “the most likely explanation” for the policy was that the company “was attempting to ‘run off’ older employees with higher medical and prescription drug costs;” that the company refused to consider individual circumstances or medical authorizations stating that the plaintiff could work safely while on the prescription medications; and that a plaintiff who failed the initial panel test was allowed to continue working on an important project but was terminated after failing a random test following completion of the project.
A test to determine the illegal use of drugs is not a medical examination under the ADA and inquiries concerning current use of illegal drugs are not unlawful inquiries. An employer who ventures beyond the “illegal use” parameter must establish that its examinations and inquiries are “job related and consistent with business necessity.” An employer should ensure its drug testing protocol tests for illegal drugs only and that its drug testing vendor is following that protocol.