Blog

 
     

Drug Testing and the Americans with Disabilities Act

By Michael Klazema on 10/30/2014

The U.S. Equal Employment Opportunity Commission (EEOC) regularly pursues potential violations of the Americans with Disabilities Act (ADA). It recently settled a case involving an alleged violation of the ADA when an employer failed to hire an applicant who could not perform a pre-employment urinalysis drug test because of a disability. In light of this case, we thought now would be a good time to review the ADA as it relates to drug screening.

The ADA makes it unlawful to discriminate against a person because of a disability. Under the ADA, employers must provide an employee or applicant who has a disability with a reasonable accommodation. Employers must engage in an interactive process with the employee or applicant in order to determine how to reasonably accommodate the disability. This interactive process is an essential requirement in complying with the ADA.

It is not the responsibility of the applicant or employee to tell the employer how to accommodate a disability. Instead, the employer and its managers and supervisors must be diligent in listening to individual concerns about performing job duties or adhering to company policies. One risk employers face is that an expressed concern is not recognized as a matter that would qualify as a disability under the ADA. This is understandable given the subjective nature of a “disability” under the law. In order to better protect against discrimination under the ADA, employers should as a matter of practice tell their local managers to listen, escalate, respond. They should: (a) listen to concerns expressed by the applicant or employee; (b) escalate the matter to other managers or executives for their input (more is better in this instance), and (c) respond appropriately.

To use the recent case as an example, an acceptable solution would have been to use drug testing that did not depend on urine. There will be occasions when an employer decides that an alternative to a urine test is a reasonable accommodation. Many companies are using hair analysis as an alternative to urinalysis when necessary. If a hair analysis is necessary, backgroundchecks.com can accommodate this service.

Tag Cloud
Categories
Recent Posts

Latest News

  • November 08 A Texas-based company was found to be supplying landlords with inaccurate background check results, potentially affecting housing decisions. The company must pay a record-setting settlement.
  • November 07 Orange Leaf Frozen Yogurt brand trusts backgroundchecks.com to perform the crucial function of background checks on job candidates before extending offers of employment.
  • November 06 The man previously responsible for running background checks on New York City’s school bus drivers says the city’s Department of Education has been pushing back against more thorough checks. The DOE reportedly circumnavigated proper bus driver vetting channels for most of the spring and summer this year.
  • November 06 If you have a series of speeding tickets or other traffic violations, do you need to disclose them as criminal history?
  • November 01 South Carolina's legislature recently adopted a measure to expand access to expungement opportunities for the state's ex-convicts, but other gaps in the process remain. Advocates disagree on how to address the problem to protect offenders as well as the public.
  • October 31 Background checks will show different things depending on the type of check. Here are a few ways employers can use background checks to learn about candidates.
  • October 30 The Pentagon recently disclosed a breach that exposed the personal information of roughly 30,000 personnel. The government blamed the breach on a contractor, calling into question background check policies for federal government vendors.
  • October 30 Just because a record has been expunged from the record or sealed from public view doesn’t mean all traces of it are gone. Expunged and sealed records can sometimes show up on criminal background checks.
  • October 29 What is the status of your driver’s license? Not only can driver’s license statuses impact your ability to drive legally, but they can also impact your auto insurance coverage.
  • October 26 As fresh details emerge in the long-running sex abuse scandal plaguing the Catholic Church, some efforts to mitigate risks and protect the vulnerable stand out from the rest, including those in the diocese of Austin, Texas.