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Test for Illegal Drugs is Not an Impermissible Medical Examination, Even if the Test Uncovers Lawful Drug Use

Did you know there are rules for employers on conducting medical examinations of employees? If this is news to you, there are!  Generally, the Americans with Disabilities Act (“ADA”) prohibits a medical examination of an employee and inquiries to employees as to whether they have a disability or the nature or severity of the disability, unless it is job related and consistent with business necessity.  However, a test for illegal use of drugs is not considered a medical examination.  A new case helps explain this distinction. 

The Tenth Circuit Court of Appeals, which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, recently addressed the issue in Turner v. Phillips 66 Company.

Mr. Turner worked for Phillips 66 as a crane operator at the company’s refinery in Ponca City, Oklahoma. The company had a drug testing policy which allowed for random and post-accident testing for Cannabinoids, Cocaine, Opiates, Phencyclidine and Amphetamines.  The policy required termination of any employee who tested positive. 

Mr. Turner was selected for a random drug test. Three days later he was involved in a workplace accident and tested again.  On the day of the accident, his original test came back positive for amphetamines.  At the time, the amphetamines were not prescribed by his doctor but his doctor did later send in a note explaining Mr. Turner had been taking Sudafed, an over the counter medication for unspecified medical conditions.  Since Mr. Turner’s test was positive, the company discharged him.   He appealed and the company refused to overturn its decision. 

Mr. Turner then filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), the federal agency responsible for enforcing anti-discrimination employment laws, alleging various claims of disability discrimination. Specifically, he alleged the drug test was an improper medical examination and disability inquiry under the ADA because his test was positive for amphetamines and he was taking an over the counter amphetamine related medication recommended by his doctor. He argued because the drug was over the counter, the drug test was unlawful since it tested for non-illegal drugs. 

The district court found for the company and the Tenth Circuit upheld the decision. The Court of Appeals held a test for the illegal use of drugs does not necessarily become an improper medical examination simply because it reveals the legal use of drugs.  An oddity here is the company prohibited the use of this legal drug and therefore when it was discovered, discharge was warranted. The employee tried to use the ADA to avoid this conclusion but to no avail.  Companies often find even legal drugs can have negative impacts on performance and are therefore prohibited.  This was such a case. 

For employers, this case is a good reminder that drug testing implicates a number of State and Federal laws. Here, the employer had a strict policy which may not be allowed in all jurisdictions.  It also implicated medical examinations under the ADA which has different rules depending on where the employee is in the hiring process. Therefore, employers would be wise to contact competent labor and employment counsel to navigate this area.  

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560. 

Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com.  We may address your question in a future post.