A recent case emphasizes that employers must ensure they do not make improper medical inquiries related to pre-employment drug test results at the pre-offer stage. John Harrison v. Benchmark Electronics, Inc., No. 08-16656, 2010 App. LEXIS 632 (11th Cir. Jan. 11, 2010). Some valuable lessons for employers are discussed below.

The Eleventh Circuit Court of Appeals permitted an applicant who was not hired after testing positive for drugs used to control his epilepsy to proceed with his lawsuit asserting claims under the Americans with Disabilities Act because there were factual issues whether the employer made an improper medical inquiry and denied employment on that basis.

The Facts. John Harrison worked for Benchmark Elecs. Huntsville Inc. (“BEHI”) through a temporary employment agency and was encouraged by his supervisor to apply for permanent employment with BEHI. Soon after submitting to a pre-employment drug test, required for permanent employment at BEHI, the Human Resources Department learned Harrison’s results were positive and was awaiting review by a Medical Review Officer (“MRO”). (A Medical Review Officer is a licensed physician with expertise in analyzing drug test results, who receives and reviews drug test results on an employer’s behalf.)

Harrison’s supervisor informed Harrison that he had tested positive for barbiturates. The supervisor then called the MRO and passed the telephone to Harrison, remaining in the room the entire time Harrison spoke with the MRO. Harrison explained to the MRO that he had epilepsy since he was two years old, that he took barbiturates to control it, and stated the amount of his dosage. Based on this information, the MRO verified Harrison’s drug test as negative.

When Human Resources prepared to hire Harrison, his supervisor instructed Human Resources not to prepare the offer letter. The supervisor also instructed the temporary agency not to return Harrison to BEHI because Harrison had performance issues and an attitude problem, and because Harrison had made threats. Harrison subsequently was informed that he would not be returning to BEHI and was fired by the temporary agency.

Harrison filed suit in federal court, alleging that BEHI engaged in an improper medical inquiry in violation of the Americans with Disabilities Act (“ADA”), and that he was not hired due to a perceived disability, among other claims. The District Court dismissed the suit because Harrison had tested positive for barbiturates, which then authorized BEHI to inquire whether Harrison had a legitimate use for the medication. Harrison appealed.

Ruling. The Eleventh Circuit Court of Appeals reversed, allowing Harrison to proceed with his suit. It held that Harrison’s complaint sufficiently alleged an improper medical inquiry claim in violation of the ADA. His complaint alleged that following the pre-employment drug test, BEHI questioned him about his seizures, and he claimed damages for these allegedly prohibited medical inquiries.

Significantly, the Eleventh Circuit disagreed with the District Court’s conclusion that BEHI’s inquiries were permissible because Harrison tested positive on his drug test. The Court stated:

“While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning.”

The Court stressed that while it is generally permissible for employers to make inquiries following a positive pre-employment drug test, those inquiries must be lawful, e.g., “what medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?”

The ADA’s regulations, (see 29 C.F.R. §1630.13), coupled with the EEOC’s Enforcement Guidance, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (EEOC Notice 915-002) (Oct. 10, 1995) (pdf) make it clear that disability-related questions still are prohibited at the pre-offer stage:

employers should know that many questions about current or prior lawful drug use are likely to elicit information about a disability, and are therefore impermissible at the pre-offer stage.

The Court stated that if Harrison’s version of the facts was believed, a jury could find that the supervisor’s presence during the phone call to the MRO constituted an impermissible attempt to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

Lessons for Employers:

  1. Conduct pre-employment drug testing after a conditional offer of employment has been extended. In this case, the drug test was conducted before the offer letter was sent to Harrison, making the employer’s inquiries impermissible. Some state laws require that pre-employment drug testing be conducted only after a conditional offer of employment has been extended. Employers should review their pre-employment drug testing policies to ensure that testing occurs after the conditional offer of employment.
  2. Drug test results should not be reported to the employer until after the MRO has reviewed and verified the result. Employers should act only on drug test results that have been reviewed and verified by the MRO. (Some state laws require MRO review of drug test results.) One of the purposes of MRO review is to ensure that the employer does not take action on a positive test result that might be explained by a legitimate medical reason, as was the case with Harrison. Employers generally lack the medical expertise to make accurate conclusions about an employee’s explanation concerning his drug test result. The MRO is the only person who should discuss possible medical explanations for positive test results with applicants and employees because: (1) the MRO will keep the information provided by the applicant or employee confidential; and (2) the MRO has the medical expertise to make an appropriate conclusion about the applicant’s or employee’s potentially legitimate use of medications that may affect a drug test result. The employer’s non-participation in the MRO review process actually protects the employer from making erroneous decisions that could lead to discrimination claims, or from acquiring unnecessary knowledge of medical facts that could be the basis of later, unrelated discrimination claims.
  3. Do not engage in discussions with applicants or employees over reasons for positive (or potentially positive) drug test results. As stated above, all discussions concerning applicants’ or employees’ use of legal medications – and their effect on drug test results – should be directed to the MRO, not to the employer. Employers should review their drug and alcohol testing policies to ensure that applicants and employees are advised to discuss their use of legal medications only with the MRO, not with the employer.
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

Photo of Kathryn J. Russo Kathryn J. Russo

Kathryn J. Russo is a Principal in the Long Island, New York, office of Jackson Lewis P.C. She is a firm resource on the legal issues implicated in workplace drug and alcohol testing arising under federal, state and local laws.