One of your potential hires just completed a five-panel drug test as a condition of employment, and he tested positive for opioids.
What do you do?
Did your company violate the law by using a drug screen that detects opioids?
No. It didn’t.
An Alabama federal court recently explored this issue in Upton v. Day & Zimmerman NPS (opinion here). Upton worked in a unionized workplace. An agreement between his employer and the union dictated that all workers must pass a five-panel drug test before working at any power plant unless they have been tested in the past six months. Upton worked a series of abbreviated stints at a power plant. Each time Upton took a drug test, he tested non-negative for opiates — Upton had a prescription — and he completed the medical review process to verify his prescriptions are legitimate.
Everything was cool until Upton was not rehired because the person in charge of hiring allegedly accessed Upton’s drug test results and learned what prescription medications Upton was taking.
Enter the Americans with Disabilities Act. The ADA prohibits many forms of pre-hire medical inquiries. But, a drug test is not one of them. Heck, a drug test isn’t a medical inquiry at all.
Further, the EEOC acknowledges that “[m]edical information may be given to—and used by—appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA” without violating the ADA.
Did your company violate the law if it refused to hire that applicant?
Well, that depends.
(What else did you expect me to say?)
If the applicant does not have a valid prescription for the opioids and, instead, is using the drugs illegally, then the ADA does not protect the applicant. Under the ADA, you can refuse to hire.
However, if the opioids are prescribed, it may mean that the individual has an underlying disability. And, if the individual has an underlying disability, then it’s time to have a good-faith interactive dialogue to discern what, if anything, the company may need to do provide a reasonable accommodation to permit the applicant to perform the essential functions of the job.
But, if the job is safety-sensitive, or if the position is in a regulated industry where testing positive for certain opioids is an automatic disqualifier, then the individual is not qualified to perform the job. However, if there is another open position for which the applicant is qualified (even with the positive opioid test) then a transfer may be a reasonable accommodation.
In other words, with all of those if’s, but’s, and however’s, this can be a very tricky area to navigate. When in doubt, don’t hesitate to call a lawyer.