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Employees fired after drug-testing revealed presence of [legal] precription drugs cannot sue

Dura Automotive instituted a "safety" policy under which it imposed mandatory drug-testing on all employees.  The testing screened for both illegal drugs and legal prescription drugs that Dura concluded might be unsafe or diminish performance, including Xanax, Lortab and Oxycodone.  Velma Sue Bates and six others tested positive for one of the banned substances, but all had legal prescriptions and their physicians provided confirmation that the patient/employee's dosage of medication would not interfere with safety.  Dura refused to consider the physician explanations and fired the seven employees when they did not discontinue taking the banned prescriptions.  The employees filed suit for wrongful termination and violation of the Americans with Disabilities Act (ADA).

The employees claimed that Dura's new policy of legal-drug testing violated two provisions of the ADA, and the trial court agreed.  The employees claimed that the testing constituted illegal discrimination against disabled employees, and they also claimed that the drug testing violated the ADA provision that precludes an employer from "examining" or "making inquiries" of an employee with regard to the existence, nature or severity of a disability, absent proof that the examination or inquiry is "job-related" and "consistent with business necessity."

On appeal, three Sixth Circuit federal judges reversed the lower court.  It held that since the employees were not "disabled" they were not protected by the ADA from discrimination.  (Of course, by this approach to the act, an employer can screen for genetic markers of future increased probability of disability, or for diseases or conditions--such as diabetes or blood pressure, for example--that are likely to progress to disability, and fire the employees on an anticipatory basis.  AT LEAST SO LONG AS THEY MAKE THE TERMINATION EFFECTIVE BEFORE THE CONDITION BECOMES DISABLING.  For that matter, employees who control an otherwise disabling condition by medication can be terminated for taking the medication---so long as the termination is effective before the drug wears off...

The appellate judges also ruled that the employees were not entitled to protection under section 12112(d)(4) of the Act:  the section that makes it illegal to perform medical examinations or to conduct inquiries into medical conditions.  The court ruled that this question, i.e., whether mandatory drug screening is an "examination or inquiry" within the meaning of the act, was not "inextricably intertwined" with the issue certified for appeal and therefore refused to grant employees relief on that basis or to decide that issue.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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