Two Recent Drug Testing Cases That Cost Employers Money

A recent article, originally published in the DATIA Summer 2018 magazine by William J. Judge, JD, LL.M., of Drug Screening Compliance Institute, summarized several court cases affected employers negatively based on their drug testing policies.

Below are a couple of the court cases summarized in the article. As an employer, what would you do differently?

To read the full article, click here.

EEOC v. M. G. Oil Company d/b/a Happy Jack’s: ($45,000.00) (settlement):

An Applicant for a cashier position applied for and received an offer of employment at Happy Jack’s Casino in South Dakota. After taking a routine pre-employment drug test before starting work, the Applicant was told that the Employer was withdrawing the job offer because the test was reported as positive. Although the Applicant told Happy Jack’s Casino that the test reflected prescription drugs (hydrocodone) that she took for her disability, (chronic pain) and even though she told them that she would provide additional information if needed, Happy Jack’s Casino refused to hire her.

On September 14, 2016, the Employer was accused by the EEOC of violating federal law by refusing to hire the Applicant based on her disability.  On May 18, 2018, the Employer agreed to settle the case for $45,000 and other considerations.  The Employer’s indemnification action against the third-party company contracted to medically review the sample had been dismissed, based on a 1981 United States Supreme Court decision finding that such discrimination cases did not allow employers to seek indemnification from a third party.[7]

What would you do?

1. First, the impact of the federal Americans with Disabilities Act (ADA), as well as state disability discrimination laws must be understood.  The ADA permits testing for “illegal” drugs but “legal” drugs are a different story.  Have you considered the impact of these laws on your policy and perhaps more importantly, your procedures?
2. What drugs are you testing for?  Will your test panel raise disability discrimination issues?  It’s not that you shouldn’t have an expanded panel, it’s a question of being properly prepared for it.

EEOC v Bell Leasing, Inc. d/b/a Bell Lexus ($45,000.00):

Sara Thorholm applied for and was offered a job as a product specialist and sales person with Bell Lexus.  Thorholm suffers from attention deficit disorder (“ADD”), for which she takes a prescribed medication. Bell Lexus had a policy and/or practice of uniformly refusing to employ any applicant who tested positive for any of the classes of substances on a list identified by Bell Lexus, regardless of whether the positive drug test resulted from medication taken to treat a disability.

Thorholm tested positive for one of the prohibited classes of drugs.  She offered to provide documentation of her prescription and to change her medication.  Those offers were refused.

This action was filed August 25, 2016, and a consent decree was entered on June 8, 2017.  Bell Lexus agreed, among other things, to pay Thorholm $45,000.00.

What would you do?

This case has many similarities to Case #2 (Happy Jack’s) and not just the settlement amount.  But here, consider the policy approach of applying the rule to everyone that applies for a job regardless of the nature of the job duties or the person’s ability to perform the essential functions of the job.

1. Do you need to review your policy to make sure you don’t make the same mistake here?
2. Are your procedures appropriate in response to the expanded application of the ADA and state disability discrimination rules.?
3. Do you need to provide related training to your management staff?