While prescription drug use and abuse pose serious concerns for the health and safety of workplaces, two recent cases filed by the U.S. Equal Employment Opportunity Commission (EEOC) suggest that employers need to be very cautious about how they deal with such issues.

EEOC v. M.G. Oil Company d/b/a/ Happy Jack’s

First, on September 14, 2016, the EEOC filed suit against M.G. Oil Company (doing business as Happy Jack’s Casino) in the U.S. District Court for the District of South Dakota, challenging the implementation of Happy Jack’s drug testing policy. As alleged in the suit, Happy Jack’s withdrew its offer of employment to Kim Mullaney after she failed a pre-employment drug test due to her use of lawfully prescribed hydrocodone for neck and back pain.

The EEOC took issue with Happy Jack’s failure to provide a medical review of the drug test results, failure to allow Mullaney to present evidence of her prescription drug use, and failure to allow her to present evidence of her underlying impairment. The EEOC also took issue with Happy Jack’s policy that required all employees (safety-sensitive and non-safety-sensitive) to disclose all prescription and non-prescription drug use. The EEOC sued Happy Jack’s under the Americans with Disabilities Act (ADA) for actual and perceived disability bias. The EEOC also claimed that Happy Jack’s maintained a discriminatory qualification standard and engaged in unlawful disability-related inquiries. The commission is seeking injunctive relief and actual and punitive damages.

EEOC v. Georgia Hospitalists Group, LLC et al.

Second, on September 28, 2016, the EEOC sued ApolloMD and Georgia Hospitalists Group in the U.S. District Court for the Northern District of Georgia after the defendants fired Dr. Alunda Hunt for his use of narcotic pain medication to treat chronic pain. According to the EEOC’s suit, the defendants regarded Dr. Hunt as disabled as there was no indication that the prescription medication impacted Dr. Hunt’s ability to do the job or maintain his medical license. The suit also appears to allege that the defendants had no real dialogue with Dr. Hunt regarding the nature of his condition and/or the impact of his prescription drug use before terminating his employment. As in the Happy Jack’s case, the EEOC is seeking damages and injunctive relief.

Key Takeaways

While the EEOC did not challenge all employment drug testing or invalidate limited medication disclosures for safety-sensitive jobs, both cases highlight the risk of a one-size-fits-all approach to drug testing. As such, these cases remind us that employers need to be sensitive to ADA and Family and Medical Leave Act issues that may underlie prescription drug use and be prepared to engage in an interactive dialogue with employees to address their job requirements, the employee’s prescription drug use, and the employee’s capabilities with and without reasonable accommodation. Blanket policies that mandate discharge for prescription drug use (especially for non-safety-sensitive jobs) are particularly risky given the EEOC’s recent actions.