Great, you think, I selected a great candidate for the job – now she just has to fill out some paperwork, take a routine drug test, and she’ll be ready to start.
Your new hire reports for her test and receives a cup for her urine sample. She seems anxious and takes a long time in the bathroom. A nurse knocks to see if she’s okay – the new hire says she’s fine, but still doesn’t come out. More knocks at the door. Finally, the nurse tells her that others are waiting to use the bathroom and she needs to get out. The new hire couldn’t provide a urine sample and explains she has a “shy bladder.”
You wonder, does she have something to hide? Or is this a legitimate medical issue?
Before you go assuming your new hire is trying to stall a drug test, consider that an estimated 20 million people in the United States are believed to suffer from paruresis, a social anxiety disorder often called “Pee-Shy,” “Shy-Bladder,” or “Bashful Bladder.” (Click here to learn more about paruresis.) Individuals with this ailment may have problems urinating if others are nearby, or if they think others can hear them. It becomes a particular problem with drug testing, since many testing procedures require that a sample be observed visually or aurally, which may increase the difficulty for individuals with this condition to produce a specimen.
Ok, you think, so this is a real thing — what about my company’s drug test policy?
If your new hire or randomly sampled (or workplace injury tested) employee says she cannot provide a urine sample because of a medical condition, treat this like you would any other disability accommodation request. (Cautionary Note: if the employee simply refuses to submit to a drug test and gives no indication that the refusal is for medical reasons, you’re not under any obligation to accommodate her nor should inquire as to any medical reason for her refusal.) And as with other accommodation issues, there is no one-size-fits all approach.
If there is a pee-lausible claim for a medical condition, consider whether feasible alternatives exist to fulfill your company’s drug test requirement (e.g., hair, blood, or saliva samples). Or, consult with the new hire or employee about conditions that would help her submit to the urinalysis. For example, some individuals with paruresis manage their condition by using private restrooms, or restrooms with running water. Providing a three-hour window, or avoiding the “are you done yet?” scenario above, may assist some individuals. In addition, like any other medical condition, you’re entitled to ask for a doctor’s note explaining why the employee can’t submit to the standard urine test. (Of course, asking for a doctor’s note could buy an employee time to come up with a clean test — taking the “random” out of random drug screenings — so think about whether this option is consistent with your company’s goals.)
Will that protect me?
Most likely — like any disability accommodation issue, the key is a willingness to be flexible. You don’t have to provide an employee with the exact accommodation she wants, but if you encounter a situation like this, you shouldn’t immediately draw a line at the bathroom door and say to the employee, “you ‘gotta go.’”
Well, what do the courts say?
Few courts have addressed paruresis and employer drug testing, and none have done so under the new 2009 Americans with Disabilities Amendments Act (the “ADAAA”). In 2011, the EEOC addressed whether paruresis could be considered a “disability,” and, though not reaching a definitive conclusion, noted that bladder functions are a “major life activity” under the ADAAA. Its analysis certainly strongly indicated that paruresis could be deemed a disability.
Prior to the ADAAA, some courts rejected that paruresis constituted a disability, while others held that, even if it were, an employer offered a reasonable accommodation by giving an employee the chance to submit a doctor’s statement describing his condition. Compare Linkous v. CraftMaster Mfg., Inc., 2012 WL 2905598 (W.D. Va. July 16, 2012) (finding the plaintiff’s sporadic inability to urinate did not pose a “substantial limitation”), with Kinneary v. City of New York, 601 F.3d 151 (2d Cir. 2010).
New cases have also cropped up — in April, a woman filed suit after her new employer refused to provide her with an alternative drug test. And just last month, the EEOC filed litigation against a major retail corporation in the U.S. District Court for the District of Maryland, claiming the company violated the ADA when it refused to accommodate a new hire, who could not provide a urine sample due to dialysis treatment, or allow him/her to submit to an alternative drug test.
Should I expect more of this?
Quite possibly. With the ADAAA making it easier for individuals to establish that they are “disabled” and the EEOC increasingly bringing ADA cases (see Seyfarth’s discussion of the EEOC’s influx of ADA cases, here), “shy bladders” may have their day in court.