Earlier this week, we reported on a New York Times article about employer efforts to address the impact of prescription drugs in the workplace. The article profiled workers at the Dura Automotive Systems Inc. plant in Lawrenceburg, Tennessee who were terminated for testing positive for prescription drugs that Dura considered to raise safety issues. Yesterday, the Sixth Circuit handed down a decision in a case that challenged the company's drug testing policy.

In that decision, the Court held that several of the workers could not challenge their terminations under that policy because they were not "qualified individuals with a disability" under the ADA. The employees had claimed that under Section 12112(b)(6), the drug testing policy constituted a “qualification standard, employment test, or other selection criteria” that “screen out or tend to screen out” persons with disabilities. But, the court held that “a straightforward reading of this statute compels the conclusion that only a ‘qualified individual with a disability' is protected from the prohibited form of discrimination described in subsection (b)(6)—the use of qualification standards and other tests that tend to screen out disabled individuals.” The Court distinguished Section (b)(6) the ADA from Section (d)(4), which provides that employers may not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Many courts have held that an employee does not need to have an ADA-protected disability to pursue a lawsuit under Section (d)(4).

The Sixth Circuit's decision is certainly good news for employers, particularly for those in Ohio, which lies within the Sixth Circuit. But in order to avoid lawsuits challenging the testing itself, employers must still be able to demonstrate that any drug testing for prescription drugs is not only job-related but also required by business necessity. In separate litigation brought by the EEOC against Dura, Dura apparently is attempting to defend its testing program based on evidence that suggests that the Lawrenceburg facility has a higher accident rate than other comparable facilities. In addition, the New York Times article suggests that there was evidence of drug use and sales going on at the plant. It will be interesting to see how the Sixth Circuit addresses that issue if the EEOC case gets that far.