Corporate Services, Inc.
208 Kishwaukee St. · Rockford, IL 61104
(p) (815) 962-8367 · (f) (815) 962-0940

The Perils of Using Third Parties to Drug Test Applicants


Late last week, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it had settled an Americans with Disability Act (ADA) lawsuit with a midwest employer.

From the EEOC press release:

According to the EEOC's lawsuit, [the employer] withdrew an offer of employment to an applicant for a cashier position [...] based on a drug test showing the lawful presence of a prescribed medication. [The employer] asserted it relied on a third-party testing vendor to inform [the employer] that the applicant was taking prescription drugs.

Indeed, after the EEOC sued the employer, the employer tried to add the thirty-party testing vendor as an additional defendant in the lawsuit. According to the employer, it contracted with the third-party testing vendor to have it analyze the employer's drug tests of prospective new employees and inform the employer whether the test results were negative or non-negative for drugs.

The employer further claimed that "if the sample analysis yielded a non-negative result, then [the third-party testing vendor] was obligated to send the drug test to a medical review officer to determine whether the non-negative result was a consequence of the test subject taking a legal prescription drug. Then, if the non-negative result was due to a legal prescription drug, [the third-party testing vendor] would report the test results as negative to [the employer]."

You can probably guess what happened next.

  • An individual applies for a job, which is contingent on a negative drug test
  • The drug test comes back positive for prescription drugs.
  • The employer assumed that the drug test previously had been sent to a medical review officer to determine if there was a valid legal reason for the non-negative result.
  • Based on this assumption, it rescinded its employment offer to the applicant.

Employer takeaways.

You can see how this would be bad for the employer to rescind a job offer when an applicant may be using prescriptions drugs to treat an underlying disability. Unfortunately for the employer, the court tossed the third-party complaint against the third-party testing vendor. So, presumably, that left the employer with no outs left, but to settle with the EEOC. The employer settled for $45,000.

While these things happen, situations like these are a wake-up call for employers to be very careful when making employment decisions based on individuals using prescription drugs. Good communication is paramount. And, like Santa Claus, you make a list, and you check it twice. Because once you have rescinded a conditional job offer, it can be tough to get that toothpaste back into the tube.

Posted In: Drugs/Alcohol, Abuse and Testing; Americans with Disabilities Act (ADA); Equal Employment Opportunity Commission (EEOC)

Want to know more? Read the full article by at The Employer Handbook

More News from Corporate Services, Inc.

OSH Act Penalties Increase

The U.S. Department of Labor (DOL) has published a final rule that increases civil monetary penalties the DOL assesses and enforces, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.more