The Perils of Using Third Parties to Drug Test Applicants
Posted: May 25, 2018
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- Based on this assumption, it rescinded its employment offer to the applicant.
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 Eric B. Meyer at The Employer Handbook