- A federal district court judge has refused to dismiss a lawsuit alleging that D.C.'s controlled substance tests for employees ran afoul of federal law (Lewis v. Government of the District of Columbia, No. 1:15-cv-00521 (D.D.C. Oct. 18, 2017)).
- The city adopted a new drug and alcohol test requirement for employees in "high-risk or sensitive positions." An HR rep refused and was fired. She sued, alleging that the requirement went beyond the Americans with Disabilities Act's (ADA) limits on such tests.
- The city asked the judge to dismiss her claims, arguing that she couldn't challenge the tests because she hasn't shown that she has a disability. The judge, however, said the ADA didn't require such a showing for medical inquiry claims and refused to dismiss the suit, noting that a jury may have to decide whether the tests were job-related, as required by the ADA.
While employees generally have to show that they have a disability (or had a disability, or are regarded as having a disability or are associated with an individual with a disability) to receive the ADA's protections, that's not the case when an employee is challenging a medical inquiry, according to the U.S. Equal Employment Opportunity Commission. The judge in Lewis agreed: “It makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability,” the order says, quoting an appeals court opinion.
And as for disability-related inquiries or medical examinations, the ADA has strict rules for each stage of employment, according to the EEOC's Enforcement Guidance: Disability-Related Inquiries And Medical Examinations Of Employees Under The Americans With Disabilities Act:
- Pre-employment. "At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job."
- Post-offer. "At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category."
- Current employees. "At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity."
So when is a test an ADA-covered "medical examination" and, therefore, subject to these restrictions? EEOC's guidance says that inquiries about prescription drugs and alcohol fall into this category. Tests for illegal drugs do not.
The plaintiff in Lewis alleged that D.C. required her to disclose alcohol and prescription-drug use. Unless the suit is otherwise resolved, a jury will have to determine whether such tests were necessary for an HR rep.