A federal court in Georgia rejected an employee’s claim that his termination after a positive drug test result for barbiturates was discriminatory.  Roman v. Leggett and Platt, Inc., Case No. 3:14-CV-20 (M.D. Ga. Nov. 3, 2015).

Roman worked in a safety-sensitive position and was subject to random drug testing.  He tested positive for phenobarbital, which is a barbiturate.  Roman claimed that the positive test result was a false positive, and stated that he used Dilantin, an anticonvulsant which is used to treat epilepsy, as well as methotrexate.  His employer did not know that he had epilepsy prior to the drug test.  The certifying scientists at the employer’s drug testing company stated that Dilantin would not cause a positive test result for phenobarbital.  Roman’s employment therefore was terminated.

Roman asserted that he was discharged due to his disability, given that he was terminated shortly after the employer learned that he had epilepsy.  However, the court noted that the employer had a legitimate, non-discriminatory reason for the discharge – the positive drug test result – and there was no evidence that the employer retained other employees with unexcused positive test results, or that the employer retained other employees after the drug testing company stated that the prescription medication would not cause a false positive.

Roman further argued that the employer’s drug policy did not mandate termination for a positive drug test result.  Although the policy did not say that employees who test positive must be terminated, it did say that violators are “subject to immediate and severe disciplinary action, up to and including termination of employment for a first offense.”  Roman presented no evidence that the policy was applied to him in a discriminatory manner.

The Court also rejected Roman’s arguments that the employer’s drug testing policy was unreasonable, finding that:  Roman had been classified as a safety-sensitive employee before the employer knew that he had epilepsy; it was permissible for the employer to test for barbiturates; and, the Court would not second-guess the cut-off concentrations used by the employer to establish a positive test result.

This case highlights the importance of using a Medical Review Officer to review positive drug test results. The employer relied on the medical expertise of the certifying scientists at its drug testing company to base its employment decision on the fact that the prescription medication being used by the employee could not have caused the positive drug test result.  Without a lawful prescription for a medication that could have caused a positive test result, the employee could not show that he had been discharged due to his purported disability.