February 15, 2010

An applicant who was not hired after testing positive for drugs used to control his epilepsy was permitted to proceed with his lawsuit asserting claims under the Americans with Disabilities Act because there were factual issues whether the employer made an improper medical inquiry and denied employment on that basis.  Harrison v. Benchmark Elecs. Huntsville Inc., No. 08-16656, 2010 App. LEXIS 632 (11th Cir. Jan. 11, 2010).

John Harrison was assigned by a temporary agency to work for Benchmark Elecs. Huntsville Inc. (“BEHI”) in November 2005.  In May 2006, Harrison submitted an application for permanent employment to BEHI, at the request of his supervisor, Don Anthony.  Anthony advised Human Resources that he was interested in hiring Harrison.  Harrison was instructed to submit to a pre-employment drug test.  He testified that prior to the drug test, he never was advised that his performance was deficient.

In July 2006, the Human Resources Department was advised that Harrison’s drug test had come back positive and was awaiting review by a Medical Review Officer (“MRO”).  (A Medical Review Officer is a licensed physician with expertise in analyzing drug test results, who receives and reviews drug test results on an employer’s behalf.)  Although it is unclear how Anthony learned of the positive drug test result, Anthony informed Harrison that he had tested positive for barbiturates.  Anthony then called the MRO and passed the telephone to Harrison, remaining in the room while Harrison spoke with the MRO.  Harrison explained to the MRO that he had epilepsy since he was two years old, that he took barbiturates to control it, and stated the amount of his dosage.  Anthony remained in the room during this conversation.

The MRO verified Harrison’s drug test as negative on July 19, 2006.  When Human Resources prepared to hire Harrison, Anthony instructed Human Resources not to prepare the offer letter.  Anthony subsequently instructed the temporary agency not to return Harrison to BEHI because Harrison had performance issues and an attitude problem, and because Harrison had made threats to Anthony.  In mid-August, Harrison was informed that he would not be returning to BEHI and was fired by the temporary agency.

Harrison filed suit in federal court, alleging that BEHI engaged in an improper medical inquiry in violation of the ADA, and that he was not hired due to a perceived disability, among other claims.  BEHI moved for summary judgment, arguing that the Eleventh Circuit Court of Appeals had not yet recognized a private right of action for the making of an improper medical inquiry; that even if it had, Harrison failed to plead it; and regardless, BEHI was entitled to judgment as a matter of law. 

The District Court held that even assuming a private right of action existed for the making of an improper medical inquiry, Harrison could not make out such a claim because he tested positive for barbiturates, which then authorized BEHI to inquire whether Harrison had a legitimate use for the medication.  His claims were dismissed and he appealed.

The Eleventh Circuit reversed.  It held, first, that a plaintiff has a private right of action under the ADA’s provision concerning prohibited medical inquiries.  Second, the court held that Harrison’s complaint sufficiently alleged an improper medical inquiry claim.  His complaint alleged that following the pre-employment drug test, BEHI questioned him about his seizures, and he claimed damages for these allegedly prohibited medical inquiries. 

Finally, the Eleventh Circuit disagreed with the District Court’s conclusion that BEHI’s inquiries were permissible because Harrison tested positive on his drug test.  The Court stated, “While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning.”  The Court stressed that while it is generally permissible for employers to make inquiries following a positive pre-employment drug test, those inquiries must be lawful, e.g., “what medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?”  The ADA’s regulations, coupled with the EEOC’s Enforcement Guidance (EEOC, ADA Enforcement Guidance:  Preemployment Disability-Related Questions and Medical Examinations (EEOC Notice 915-002) (Oct. 10, 1995)), make it clear that disability-related questions still are prohibited at the pre-offer stage.  See EEOC Enforcement Guidance (“employers should know that many questions about current or prior lawful drug use are likely to elicit information about a disability, and are therefore impermissible at the pre-offer stage”).  

The Court further held that there were disputed issues of fact; in particular, Harrison’s testimony that Anthony was present for his entire conversation with the MRO conflicted with Anthony’s testimony that he did not know Harrison suffered from epilepsy.  If Harrison’s version of the facts was believed, a jury could find that Anthony’s presence during the phone call to the MRO constituted an impermissible attempt to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.        

Employers should draw several lessons from this case:

1. Conduct pre-employment drug testing after a conditional offer of employment has been extended.   In this case, the drug test was conducted before the offer letter was sent to Harrison, making the employer’s inquiries impermissible.  Some state laws require that pre-employment drug testing be conducted only after a conditional offer of employment has been extended.  Employers should review their pre-employment drug testing policies to ensure that testing occurs after the conditional offer of employment.
   
2. Drug test results should not be reported to the employer until after the MRO has reviewed and verified the result.  Employers should act only on drug test results that have been reviewed and verified by the MRO.  (Some state laws require MRO review of drug test results.)  One of the purposes of MRO review is to ensure that the employer does not take action on a positive test result that might be explained by a legitimate medical reason, as was the case with Harrison.  Employers generally lack the medical expertise to make accurate conclusions about an employee’s explanation concerning his drug test result.  The MRO is the only person who should discuss possible medical explanations for positive test results with applicants and employees because:  (1) the MRO will keep the information provided by the applicant or employee confidential; and (2) the MRO has the medical expertise to make an appropriate conclusion about the applicant’s or employee’s potentially legitimate use of medications that may affect a drug test result.  The employer’s non-participation in the MRO review process actually protects the employer from making erroneous decisions that could lead to discrimination claims, or from acquiring unnecessary knowledge of medical facts that could be the basis of later, unrelated discrimination claims.
   
3. Do not engage in discussions with applicants or employees over reasons for positive (or potentially positive) drug test results.  As stated above, all discussions concerning applicants’ or employees’ use of legal medications – and their effect on drug test results – should be directed to the MRO, not to the employer.  Employers should review their drug and alcohol testing policies to ensure that applicants and employees are advised to discuss their use of legal medications only with the MRO, not with the employer.

If you should have any questions, or if you require assistance with your drug and alcohol testing program, please contact a member of our Drug Testing and Substance Abuse Management Practice Group.