By now, everyone who deals with these sorts of things knows that in 2008 Congress amended the Americans with Disabilities Act (ADA) to greatly broaden the definition of “disability.” How broad, you ask? You may not believe it.
The ADA still excludes “current unlawful drug users” from its protections, but that exclusion only applies if the individual is shown to be a current unlawful drug user. So how do you prove an employee is a “current unlawful drug user?” With a drug test, of course. Here is the problem, though: Absent a showing of current use, difficulty in urinating for a drug test due to a physical or mental disability (as broadly defined in the new ADA) triggers ADA obligations.
It’s true that purported inability to urinate in only one situation - when asked to take a drug test - probably (though, amazingly enough, not certainly) does not pose ADA risk. The problem is that an employee discharged for “failure to give a timely urine sample” may claim to have asserted an ADA disability during the testing process.
The most likely example is a claim that s/he has a physical or mental “disability” that causes “unpredictable occasions of difficulty urinating” or “difficulty urinating in high stress situations” or something similar. In other words, the employee claims to have a “shy bladder.” The employee or applicant may produce testimony of friends or family members to that effect and/or a diagnosis from a medical or psychological practitioner purporting to confirm the “disability.”
Although the employee or applicant is normally required to clearly disclose the disability and request an accommodation, courts bend these rules for “unsophisticated” individuals, and may rule that an employee’s inartful disclosure of difficulty urinating put the employer (or its agent, the clinic) on notice of an ADA disability. In other words, claiming to be unable to urinate for a required drug test may amount to a request for an accommodation under the ADA.
And here is the risk.
The ADA doesn’t require you to forego drug testing just because the subject says that s/he can’t urinate. But if there is an “ADA disability,” it does require you to make any available “reasonable accommodation.”
Drug test clinics have protocols for “difficulty in urinating,” usually involving delay and instructions to the subject to drink water. You should be familiar with those protocols.
If the protocols don’t work, and you wish to further reduce ADA risk, your policy should be amended to offer an alternative method of testing, if available. Clinics usually do not automatically offer an alternative test.
There are at least three other methods for obtaining a drug test sample: blood testing, saliva testing and hair testing. All have advantages and disadvantages. You should consult with your company physician, medical review officer (MRO) or drug test clinic professionals. You also need to know what tests the clinic is equipped to administer (on a 24/7 basis, if necessary). If the best alternative is a blood test, you should consider, and perhaps consult further with counsel on, possible problems such as religious objections or even potential ADA issues. However, an applicant or employee refusing to provide blood as an alternative to a claimed inability to provide urine would be a highly suspicious plaintiff in a lawsuit.
For truck drivers and others covered by the Department of Transportation’s drug testing rules, the situation is unfortunately more complicated. Asserted inability to urinate triggers specific rules for the clinic to follow under 49 CFR Part 40, including up to a three-hour delay in testing with a direction to the subject to drink water. Asserted medical-related inability-to-urinate cases are to be referred to the MRO, and the MRO or another physician consulted under Part 40 can, in some situations, order a blood test by following the rules in Part 40. Consult with your clinic, MRO or legal counsel on these issues.
The bottom line is you should review your drug testing policy and see if it needs to be amended to take this “disability” into account.
And while you are at it, take a look at how you define “illegal drug use” in your policy. Don’t forget – Michigan, and several other states, now allow the use of medical marijuana. Effectively, that means that some employees may be using marijuana “under a doctor’s orders.” And some drug testing policies exclude from the definition of prohibited drug use “drugs being used under a ‘doctor’s orders.’” See the problem?
Keep in mind that when courts have reviewed medical marijuana statutes they have tended to very narrowly construe the statute limiting the protections they afford to individuals. In addition, the opinions that do deal with these statutes tend to hold that the statutes were not intended to regulate private employers. In Casias v. Wal-Mart Stores, Inc., the court stated that “the MMMA does not regulate private employment” and “[n]owhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace.”
Clearly, that means that because medical marijuana statutes are not intended to regulate the actions of private employers, the statutes do not prevent employers from firing individuals who use marijuana in accordance with the enacted statutes.
But that is not really the question, now is it? The question we posed was whether employers can unwittingly put language in their drug testing policies that bind them to a promise not to fire an employee who is using medical marijuana under a doctor’s orders. There is no case law one way or the other. So here is our question to you: Do you want to be the test case? We don’t think so.
Because you don’t want to be the test case, you should take a look at your drug testing policy and consider adding language that specifically deals with this question. For example: “For purposes of this policy, ‘illegal drugs’ includes any drug classified as a controlled substance by state or federal law, any otherwise legal drug that is not prescribed by a physician or is not being used in accordance with a prescription and, in all cases, marijuana, regardless of whether it is being used with medical certification.”
Or if you are dealing with a legal drug exception to the definition of prohibited drug use, consider this language: “Under no circumstances, however, will marijuana use be excepted, even if the marijuana is used for medical purposes and that use is permitted under state law.”
We recommend that you consider these issues carefully, and if we can help you with your drug testing policy, please give us a call.