Court Upholds Termination Of Employee Who Claimed Failed Drug Test Was Due To Over-The-Counter Medications

Author:Ms Jennifer Mora
Profession:Seyfarth Shaw LLP

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...

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