By Jennifer L. Mora

Seyfarth Synopsis: The Tenth Circuit Court of Appeals recently affirmed summary judgment in favor of an employer that terminated an employee after he tested positive for methamphetamines, even though he claimed that his drug test was the result of his use of an over-the-counter sinus medicine. While a favorable decision to employers, it serves as a reminder for employers to be cautious about how they elicit information from employees about prescription and over-the-counter drug use without risking a claim for an unlawful medical examination and inquiry in violation of the Americans with Disabilities Act (ADA).

The plaintiff worked as crane operator for a refinery in Oklahoma. As such, he was subject to the employer’s substance abuse policy, which provided for random and post-accident drug testing. As part of the testing process, the employer contracted with a Medical Review Officer (MRO), which, per the employer’s policy, would contact any employee after a positive test result to determine whether the employee wished to discuss the result. The plaintiff was selected for a random drug test and, three days later, was sent for a post-accident drug test. The random drug test revealed the presence of amphetamines in the plaintiff’s system, a drug that had not been prescribed to the plaintiff. However, his doctor provided a letter stating that the plaintiff had been taking over-the-counter Sudafed for unspecified “medical conditions.” The employer ultimately terminated the plaintiff for his positive test result.

The Tenth Circuit affirmed the federal district court’s grant of summary judgment to the employer on the employee’s ADA claims, which alleged disability discrimination and that the employer’s random drug test and its MRO’s questions to the employee about his drug use were impermissible medical inquiries in violation of the ADA. In affirming dismissal of the disability discrimination claims (under both “actual” and “regard as” theories), the court agreed that the plaintiff failed to prove that the employer’s stated reason for the discharge, the failed drug test, was a pretext for discrimination.

Next, the Tenth Circuit found that the test for the presence of illegal drugs was not an impermissible medical examination under the ADA, even though it potentially revealed lawful drug use. Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” However, “a test to determine the illegal use of drugs shall not be considered a medical examination.”

The plaintiff argued that because the drug test result revealed lawful drug use, the drug test was not for illegal drugs, “but went beyond that to legal and appropriate use.” He also argued that the drug test was a medical evaluation and, thus, the employer could only test if job-related and consistent with business necessity. Relying on the Equal Employment Opportunity Commission’s (EEOC) regulatory guidance, the Tenth Circuit concluded that, “[a] test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.”

The plaintiff also claimed that the MRO’s obtaining information about his prescriptions constituted an impermissible disability-related inquiry. The court disagreed. First, assuming the MRO even made an inquiry, the court noted that the plaintiff offered no evidence that the MRO directed any questions to any disability. Instead, the only record evidence showed that the MRO simply received information from the plaintiff about his medication. The court relied again on the EEOC’s guidance, which states that an employer is permitted to ask about lawful drug use if a person tests positive for illegal drug use and “may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.” Thus, the Tenth Circuit agreed that no unlawful inquiry occurred.

With the opioid crisis dominating the news, employers have become increasingly concerned about how the epidemic is impacting their workplaces. However, this court decision should not be interpreted as license for employers to begin inquiring about their workers’ lawful prescription and over-the-counter drug use. As we reported here, the EEOC continues to scrutinize employer policies regarding prescription drug use. In general, employees have a protected right to use prescribed controlled substances and come to work unless such use creates an undue risk of harm or presents a safety issue. Moreover, employers should take precautions before implementing blanket drug-testing policies that do not account for the need under the ADA to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations.

Employers also should consider revising any workplace policy that requires employees to disclose their prescription medication use, unless there is reason to believe the medication may impact performance, or otherwise suggests that employees taking such medication will be treated in a certain way without regard to whether their drug use impacts their work. Finally, employers should be mindful of the language used in a drug and alcohol testing policy, which should focus on testing for and restricting use of “illegal drugs” as opposed to “controlled substances.”

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.