Urine screening is a fairly common test for many employers. But as is true for most personnel issues – beware the ultimatum.

Kmart learned this lesson the hard way — EEOC v. Kmart Corporation et al., Civil Action No. 13-cv-02576. The story as set forth in the Complaint sounds very typical. Applicant applies for job, is told that he was selected for a vacant position and that he was to report to fill out paperwork and take a drug test.

Here is where things allegedly went off the rails. Applicant purportedly tells manager that he suffers from kidney failure and because of his treatment he is unable to produce urine for analysis.

According to the Complaint, the manager informed the applicant that it was company policy to require all new-hires to submit to a standard urine test administered at the company’s outsourced-lab, and that if he could not submit to the test he would not be hired.

The applicant was not hired by Kmart, and he filed a Charge with the EEOC alleging violations of the Americans with Disabilities Act (ADA).

To avoid further litigation, the EEOC and Kmart reached a consent decree. According to its terms, Kmart agreed to pay over $100,000 to the applicant, and to modify its drug testing policy to specifically provide for reasonable accommodations.

If you are facing a similar situation, it is helpful to remember that the ADA does not necessarily require that you accept the applicant/employee’s demand for a particular accommodation, but it does require that you engage in the interactive process. In effect, this means that an employer must make meaningful efforts to come up with alternative reasonable accommodations if the employer does not wish to grant the employee’s preferred accommodation. In other words, Kmart found trouble by refusing to consider alternatives to the required test. Don’t make the same mistake!