Drug testing of job applicants and existing employees is a common practice among many employers. However, the Equal Employment Opportunity Commission (EEOC) is aggressively challenging employer policies and handling of drug screens, particularly those resulting in a rescission of the offer of employment without an individualized assessment to determine whether an employee’s lawful use of prescription drugs may be considered a disability under the Americans with Disabilities Act (ADA). This current focus has resulted in a series of lawsuits filed by the EEOC against employers.

Most recently, in EEOC v. Steel Painters, LLC, the EEOC sought a permanent injunction in federal court in Texas against the employer, challenging Steel Painters’ actions in terminating Matthew Kimball. According to the EEOC’s complaint, Kimball was hired for a painting position. At the time Kimball was hired, he had been in a treatment program for over a year and was taking a prescribed dose of methadone at night after work. During a pre-employment drug and alcohol test, he tested positive due to his prescription of methadone and was removed from the job site. Kimball then provided the processing lab with a letter signed by his doctor describing his treatment and his prescription for methadone. The lab then changed Kimball’s test result from “positive” to “negative.” Nevertheless, the HR manager would not allow Kimball to return to work without a special form from his doctor. Kimball’s doctor instead provided another letter verifying the details of his treatment and provided contact information in the event there were questions. According to the EEOC’s lawsuit, the HR manager refused to contact Kimball’s doctor, and his employment was terminated. The case is still in the early stages of litigation.

Earlier this summer, a settlement was reached in a similar EEOC lawsuit filed in South Dakota. As first reported by eLABORate, in EEOC v. M.G. Oil Company, d/b/a Happy Jack’s Casino, the EEOC filed suit after the casino withdrew an offer of employment to an applicant whose drug test was non-negative. The EEOC challenged both M.G. Oil’s treatment of this employee and its maintenance of an unlawful policy requiring all employees to report prescription and nonprescription medication. In settling the lawsuit, the employer agreed to pay $45,000 and to adopt a new, company-wide policy which requires employees to disclose prescription medication usage, only if the company had a “reasonable suspicion” that the medication may affect performance. As part of the settlement, the casino also agreed to “inform any vendor performing drug tests of applicants or employees that they must provide any applicant or employee who has a non-negative result a reasonable opportunity to explain the result, and that they shall permit the applicant or employee the opportunity to provide documentation that the non-negative result was caused by a lawfully prescribed medication.”

Another settlement was recently announced in EEOC v. Foothills Child Development Center, Inc., in which the EEOC alleged that the South Carolina employer terminated an employee on his first day of work, despite him having disclosed his prior opiate addiction and participation in a supervised medication treatment program. According to the EEOC, the Center’s failure to engage in an individualized assessment to determine what effect, if any, suboxone had on the employee’s ability to perform his job duties violated the ADA. In that case, there was a monetary settlement and the Center agreed to revise its drug policies to specifically exclude those who legally-obtained prescription medication in a lawfully-prescribed manner, and to create an ADA-compliant procedure for conducting an individualized assessment for those enrolled in substance abuse programs.

Pursuant to the ADA, the terms “disability” and “qualified individual” with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. However, the terms disability and qualified individual with a disability do include an individual who:

  • Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs.
  • Is participating in a supervised rehabilitation program and is no longer engaging in such use.
  • Is erroneously regarded as engaging in such use, but is not engaging in such use.

Although employers are permitted to drug test to make sure individuals are not currently engaging in the use of illegal drugs, employers must be prepared to engage in a discussion regarding whether continued use of prescription drugs is done in a supervised, physician-approved setting. As noted by EEOC Houston District Director Rayford Irvin, in commenting on the Steel Painters settlement, “Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs.”

In the cases discussed above, employers took action in terminating an employee before speaking with the employee’s physician and/or engaging in an individualized assessment to determine what affect, if any, the employee’s lawful use of prescription medication had on his or her ability to perform the essential functions of the job. Employers should evaluate their current drug policies and procedures for handling pre- and post-employment drug screens that reveal the existence of any type of prescription drug use to make sure they align with the EEOC’s current position.