EEOC Says Company Allegedly Tested Employees for Legally Prescribed Drugs

A Michigan-based automotive parts company is coming under fire for allegedly conducting blanket tests for lawfully prescribed medications.

The Equal Employment Opportunity Commission filed a lawsuit against Dura Automotive Inc., alleging that the company violated federal law when it tested all of its production employees for certain legally prescribed drugs at its facility in Lawrenceburg, Tenn. The agency, which first attempted to reach a voluntary settlement, charged that Dura's alleged conduct violated various provisions of the Americans with Disabilities Act. The case is Equal Employment Opportunity Commission v. Dura Automotive Systems, Inc., No. 1:09-cv-00059 (M.D. Tenn. complaint filed 09/11/09).

According to the lawsuit, the company tested for 12 different classes of drugs, five of which were for controlled substances, while the other seven were for lawfully prescribed medications. The EEOC also alleged that Dura required those who tested positive to disclose the medical conditions for which they were taking prescription medications and made it a condition of employment that the employees stop taking their prescription medications, without any evidence that the medications were affecting the employees' job performances.

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The agency said Dura then suspended the employees until they stopped taking their prescription medications and terminated those who were unable to perform their job duties without the benefit of their prescription medications. Moreover, the lawsuit alleged that Dura disclosed to the entire workforce the identities of those who tested positive.

Dura argued that it was simply implementing a drug-free workplace program to maintain a safe work environment and keep employees free from injuries.

The lawsuit asks the court to grant a permanent injunction enjoining Dura from conducting medical exams and making medical inquiries of employees in violation of the ADA and provide for out-of-pocket losses and compensatory and punitive damages for the adversely affected employees.

Katharine W. Kores, director of the EEOC's district office in Memphis, Tenn., said identifying employees who have disabilities could possibly make those workers targets for discrimination.

"The ADA allows employers to test employees for controlled substances, but testing for legally prescribed medications and forcing employees to disclose their medical reasons for taking them clearly exceeds what the ADA allows an employer to do," she said. "The situation at Dura Automotive was aggravated by the company's humiliating those who tested positive by conducting its tests in a manner that immediately made their identities known to its entire workforce."

Seek counsel. While creating drug-free workplace policies can result in fewer accidents and create a safer work environment, it is important to consult with legal counsel before the program is implemented to ensure that your initiative can withstand challenges. Employers must also familiarize themselves with any state and federal laws that may impact when, where and how they implement drug-free workplace programs. According to the U.S. Department of Labor, several states restrict or question an employer's ability to randomly drug test employees who are not in safety-sensitive positions. Under certain circumstances, someone with a history of alcoholism or drug addiction may be considered a qualified individual with a disability under the Americans with Disabilities Act and other federal nondiscrimination statues. As a result, testing for alcohol without individualized suspicions (e.g., preemployment or random) is not allowable. For more information about state-specific laws and federal regulations, visit the DOL's Web site at www.dol.gov/asp/programs/drugs/workingpartners/regs/regs.asp.

When it comes to employees who are legally using prescription drugs for medical conditions that could impair their performance, employers can require these workers -- particularly in jobs involving safety or security -- to ensure through their prescribing physicians that they are capable of safely performing their job tasks.

Inform employees. Employers should inform and educate workers before starting a drug-free workplace program. According to the Drug Enforcement Administration, lines of communication should remain open for employees to ask questions before the policy is put in place. The DEA recommends that companies:

Gather workers' views. Formally or informally, it is important to survey employees as to whether drug or alcohol use is present and whether it is undermining health, safety, security, or other aspects of work activity.
Inform employees of the reasons for the policy. Recognize that the success of the program depends on its acceptance by the employees and job applicants themselves.
Inform employees of any available employee assistance programs.
Call together representatives of key units within your organization. This may include staff from occupational safety and health, security, employee benefits, and employee assistance programs to get a companywide sense of the problem. Employee representatives should be part of the drug-free workplace process.

Read more at the WORKERSCOMP Forum^TM homepage.

December 17, 2009

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