Employer's drug policy is too broad, federal court rules.

Employers who bar workers from using any legal prescription drug without first determining whether the prohibition is job-related violate the Americans with Disabilities Act (ADA), a federal judge in Pennsylvania has ruled.

Chief U.S. District Judge/Sylvia Rambo found that Automated Production Systems, Inc. (APS) wrongfully discharged a man who took Phenobarbital and Dilantin for his epilepsy and refused to submit to a drug test as required under the company's mandatory drug and alcohol testing policy. The policy stated that a positive result was sufficient for discharge. (Rowles v. Automated Production Systems, Inc., No. 1:CV-98-0707 (M.D. Pa. Mar. 26, 1999).)

In arriving at her decision, Rambo first had to determine John Rowles's employee status, because there was a dispute as to whether he had actually started working when he was asked to take the drug test. The ADA treats drug testing differently depending on the stage at which the employer conducts the test.

Rambo found that the testing was to have occurred after the job offer but before Rowles began work since Rowles was given forms that said his employment was conditional on passing the drug test.

Lisa Rau, a Philadelphia attorney who represented Rowles along with Thomas Earle of the Disabilities Law Project in Philadelphia, said the case was one of the first involving drug testing at that stage of the plaintiff's "employment" to come before a federal court.

"The court said that even though this came at the post-offer, pre-employment stage, an employer cannot take any adverse job action unless it can show the drug testing was done as part of a job necessity," Rau said. "The employer really has to meet that requirement. He can't just say this is a free-for-all period between the offer and starting the job."

APS acknowledged that the policy, which it copied from a standard legal document sample, contained language stating that employees would be fired for testing positive for any controlled substance, but it argued it only meant to ferret out illegal drug use. The company said Rowles was fired because he refused to take the test, not for failing to pass.

Rowles countered that he refused to take the test because the policy said he would be fired if he tested positive for any controlled substance, which would include the medication he took for his epilepsy. He said he received no assurances from APS that he would not be fired for taking his prescription medications.

In granting partial summary judgment for Rowles, Rambo rejected APS's argument, writing that the company's "contention conflicts with the plain wording of APS's policy.... The court declines to ignore the text."

Rowles had also claimed that his firing based on the policy constituted tortious invasion of privacy because the policy is "highly offensive to a reasonable person," as defined by the Restatement (Second) of Torts [sections] 652(B).

Rambo said that a jury must decide the reasonableness of APS's policy before a determination can be made on Rowles's privacy claim. The judge set an October trial date on the issue.