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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.

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