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Drug test follow-up questions may violate the ADA.

Alabama, Florida, Georgia

BUSINESSES SHOULD STRICTLY LIMIT the follow-up questions they ask on pre-employment drug tests or risk violating the Americans with Disabilities Act (ADA), the 11th Circuit recently ruled.

An employer has the right to ask questions concerning a positive test result, but "disability-related questions are still prohibited," the court ruled in John Harrison v. Benchmark Electronics Huntsville Inc.

In the case of Harrison, who has epilepsy, the employer BEHI was within its rights to ask why his drug test came back positive for barbiturates, the court found. It could even ask to see the prescription from the doctor. But when the company's medical review officer began inquiring why Harrison needed a prescription, and then probed deeper into the history and severity of Harrison's epilepsy, the company may have gone a step too far, according to the decision written by Judge Eugene E. Siler Jr., sitting by designation from the 6th Circuit.

Equal Employment Opportunity Commission (EEOC) regulations, Siler noted, warn against employers posing queries that would be likely to elicit information about a disability. Thus "a jury might find that these questions (asked by BEHI) exceeded the scope of the likely-to-elicit standard," he wrote, reversing and remanding Harrison's claim of improper medical inquiry under the ADA back to the district court.

The takeaway lesson for employers is they should exercise caution when questioning a potential employee about drug test results, says Richard Tuschman, a member of Epstein Becker Green.

Crossing the Line

Harrison's involvement with BEHI dates back to November 2005, when his temporary employment agency, Aerotek, placed him there on assignment.

By May 2006, Harrison had performed well enough that his supervisor urged him to apply for a permanent position. As part of that application, Harrison agreed to take a drug test.

But when the test results came back in July, Harrison tested positive for barbiturates. Human resources staff said they knew the case was awaiting a review by a Medical Review Officer (MRO) and told Harrison's supervisor, Don Anthony, to send him to their department to discuss the test results. They said they did not tell Anthony the results.

However, it was Anthony who told Harrison he had tested positive for barbiturates. Harrison said he had a prescription, which Anthony asked him to get. Anthony then called the MRO and passed the phone to Harrison. While his supervisor listened, Harrison told the MRO why he was taking the medication, for how long (since he was two), his dosage and other related facts.

This is where BEHI may have crossed the line between permissible and impermissible questioning, says Ani Satz, an associate professor at Emory University School of Law. "Providing a prescription may have been sufficient [to determine that Harrison was legally using the drugs]. [The employer] can't ask whatever you want because this could be a disability-related inquiry. Typically, you don't think of that coming up in the context of a drug test."

The tipping point for the 11th Circuit judges may have been Anthony's presence in the room when Harrison discussed his drug test results with the MRO.

"That was the real issue here," Tuschman says, "because [Anthony] was an agent of the employer and in a position to elicit information about the employee in the pre-employment stage."

Careless Questions

In remanding Harrison's case, the 11th Circuit set circuit precedent by recognizing that the ADA grants plaintiffs a private right of action on improper medical inquiry claims, whether or not the plaintiff is disabled. In this finding, the 11th Circuit joined the 2nd, 7th, 8th, 9th and 10th circuits, as well as the EEOC, which asserts such a right of action in its regulations.

While epilepsy is often considered a disability--and indeed is explicitly classified as one under the 2008 amendments to the ADA (see "Disability Redefined" p.78)--at the time Harrison's case reached the 11th Circuit, he was not suing as a disabled individual.

Harrison filed his original claim in May 2007, after he lost not only the permanent BEHI position but also his job with Aerotek. He alleged that BEHI engaged in an improper medical inquiry, that it did not hire him due to his perceived disability and that it terminated him due to his perceived disability. The district court granted BEHI summary judgment on all counts, and on appeal to the 11th Circuit, Harrison dropped the disability claims, appealing only the improper medical inquiry claim.

Following the appeals court's decision to remand that claim, BEHI requested a hearing and a rehearing en banc. On March 10 the 11th Circuit denied both requests. Henry F. Sherrod, III, who represents the plaintiff, says he expects the case to go to trial in federal district court sometime in the fall.

But regardless of the ultimate outcome of Harrison's case, the 11th Circuit's ruling in his favor means employers must now be more vigilant, according to Albert L. Vreeland II, a managing shareholder at Lehr, Middlebrooks and Vreeland.

"Some employers," Vreeland says, "have been careless about when you ask those questions."

RELATED ARTICLE: Disability Redefined

JOHN HARRISON'S CASE AGAINST BEHI COULD HAVE TAKEN A DIFFERENT turn had it been filed today. That's because the Americans With Disabilities Act was amended in 2008 to broaden the definition of what constitutes a disability.

The amendments include as disabilities impairments that limit activities such as reading, bending and communicating, and those that involve major body systems and functions. They also state that mitigating measures, like the barbiturates Harrison took to control his epilepsy, cannot be used in determining whether a disability qualifies under the law.

Before this amendment, "plaintiffs had quite a bit of difficulty falling under the act," says Professor Ani Satz of the Emory University School of Law. However, "under the new law, with epilepsy he would have had a strong case," she says.

Both the Equal Employment Opportunity Commission and the district court found that Harrison did not have a disability under the ADA as it was previously written. However, the 11th Circuit remanded his claim for improper medical inquiry, which it found can be brought by non-disabled individuals.

Read more about improper medical inquiry litigation.
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Title Annotation:11TH CIRCUIT
Author:Sommer, Constance
Date:May 1, 2010
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