Safety and OSHA News

Are employee screens for prescription drugs illegal?

It’s back to a trial court in a lawsuit against a manufacturing company’s employee screens for prescription medications. The company said it was only screening for meds with warnings about operating machinery. Employees say the tests violated federal law. 

Six employees filed a lawsuit against Dura Automotive Systems, alleging that drug tests of employees working at the company’s Lawrenceburg, TN, plant violated the Americans with Disabilities Act.

The ADA prohibits employers from requiring “medical examinations” or “making inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Dura claimed the drug tests didn’t qualify as medical exams or disability inquiries.

A federal district court ruled they were.

It was up to a jury to decide if the drug tests were job-related and a business necessity.

The jury found that wasn’t the case and awarded five of the six employees over $870,000 in compensatory and punitive damages.

Dura appealed to the U.S. 6th Circuit Court which recently ruled on the case.

Over 400 tested; 5 fired

First, some background.

Dura implemented its new drug testing policy after reports of employee drug and alcohol use surfaced in late 2006 and early 2007. The facility experienced some property damage, and a few workplace incidents attributable to employees’ use of illegal and prescription drugs.

The new policy prohibited employees from being impaired by or under the influence of alcohol, illegal drugs, or legal drugs – including prescription medications and over-the-counter drugs.

Employees who tested positive could confidentially report to a medical review officer (MRO) their use of prescription medications that may have affected the drug test results.

In May 2007, Dura ordered plant-wide drug testing (over 400 employees) for 12 substances – a mix of illegal substances and prescription medications.

Dura hired Freedom From Self (FFS) to administer the drug tests. FFS sent the samples to Quest Diagnostics to determine which substance triggered the positive drug test.

Then, MROs from Total Compliance Network reviewed the results and asked employees with positive tests for potential medical explanations, sometimes requesting prescription information or documentation from the employee’s doctor.

If the MRO determined the employee had a valid reason for the positive result, including use of prescription medications, the MRO changed the final test result to negative.

However, Dura decided to disregard the MRO’s revisions. Instead it prohibited any employee use of drugs that carried a machine-operation warning message.

Dura instructed employees with positive tests to bring their meds to FFS for documentation. FFS reported meds with machine-operation warnings to Dura which told the employees it would fire them if they continued to use the meds.

The medications included oxycodone, Cymbalta, Didrex, Lortrab, Soma and Xanax.

One employee discontinued her medication. The other five employees were fired.

No one asked the employees about their underlying medical conditions. Dura denies questioning them directly about their medications (the third-party companies did that).

Dura’s safety specialist admitted that the company had a blanket policy of firing employees who tested positive for the machine-restricted meds.

Court: Drug tests ‘push boundaries’

In their opinion, the two-judge majority said whether Dura’s drug-testing was a medical exam or a disability inquiry presented a “close question” – it could likely be decided either way.

The judges also wrote that Dura’s drug-testing protocol “pushes the boundaries” of the Equal Employment Opportunity Commission’s definitions of medical exam and disability inquiry:

“It certainly goes further than what the ADA’s drug-testing exemption specifically permits, but does not clearly fit the EEOC’s definitions and examples of prohibited conduct … We conclude that a reasonable jury could decide these issues either way.”

The 6th Circuit majority vacated the district court’s judgment and sent the case back for retrial with instructions to use EEOC guidance to determine whether Dura’s drug testing constituted a medical exam or disability inquiry.

This is the second lawsuit Dura faced over its prescription drug testing policy. Another was filed by the EEOC, which Dura settled for $750,000.

It appears some actions by Dura hasn’t helped its case. Dura didn’t make individual risk determinations of jobs, tools and work stations at its facility.

And a video showed employees with loose clothing, jewelry and long hair in violation of Dura’s policies. “This evidence reasonably supports the conclusion that Dura could have advanced its interest in employee safety by other, less intrusive means,” the majority on the 6th Circuit wrote.

In her dissent, the third judge on the 6th Circuit panel noted that Dura’s refusal to accept doctors’ statements that the employees were safe to work is “compelling evidence that its drug-testing program was designed to discover and then to discriminate against employees with health conditions.”

Stay tuned. The growing use of prescription painkillers in the U.S. will continue to keep this issue in the news. And as this case shows, it’s a sticky drug-testing area for companies to enter.

(Velma Sue Bates v. Dura Automotive Systems, U.S. Circuit Crt. 6, No. 11-6088, 8/26/14)

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  1. This is a no win situation for the company. If the employees injure themselves they will most likely be awarded workers compensation because the company didn’t prevent them from working around this equipment while impaired. OSHA may also hit them with the general duty clause because this is a recognized hazard.

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