Medical questions after pre-offer drug test may violate ADA

An employer’s failure to give an applicant a little privacy while he was explaining his positive drug test to the company’s medical review officer (MRO) landed the employer in court on a discrimination claim under the Americans with Disabilities Act (ADA). On his supervisor’s recommendation, a temporary contract employee applied for a permanent job. His supervisor found out that the pre-employment drug test result was positive, and had the applicant talk to the MRO over the phone while the supervisor remained in the room, listening. The applicant explained that he had a prescription to control his epilepsy, and the MRO cleared him to work. The supervisor, however, asked HR not to send an offer letter, and told the temp agency the applicant had an attitude and performance problem. The temp agency fired the worker, who then sued under the ADA. The court acknowledged that employers have a right to follow up on a positive drug test, but having the supervisor listen to the applicant’s conversation with the MRO may have been an attempt to elicit information about a disability before a job offer was made. The court sent the case on to trial (Harrison v. Benchmark Electronics Huntsville, Inc., 11^th Cir, Jan. 2010).

Tips: Notice of a positive drug test result should go directly to the MRO. If the MRO determines that a legitimate prescription caused the positive result, then you should be told the test result was negative, with no other details. You can make the job offer conditional on resolving any safety concerns expressed by the MRO. For more information, check out our Legal Guide, “ADA: Post-Job-Offer Medical Exams” (3175).