Americans with Disabilities Act—Prescription Medications—Drug Testing

Barnard v. L-3 Communications Integrated Systems L.P., 2017 WL 3726764 (N.D. Tex. 2017)—This case is an example of a growing issue in employment: drug testing for lawful prescription medications. The Americans with Disabilities Act does not prohibit drug testing for “illegal” drug use. Moreover, it allows post hiring medical examinations and inquiries that are job related and consistent with business necessity. But lawful employee use of prescription drugs presents a chain of dilemmas for the parties. Lawfully used prescription medications are legal but can affect job performance. Thus, tests and inquiries that reveal prescription medications might be job-related for some positions. But such tests and inquiries expose underlying disabilities, heightening the risk of real or perceived disability discrimination. An employer might lawfully prohibit “being under the influence” of lawful medications at doses that make job performance dangerous or unsatisfactory, but an employer might also bear a duty to accommodate employees with disabilities that require some dosage of medication. In Barnard the employer investigated an employee who appeared to be under influence of medication, and it demanded a drug test. The employer discharged the employee based on a positive test result, and the employee sued under the ADA. The employee alleged that her prescription drug use was lawful, and that the employer discriminated against her on the basis of disability and failed to accommodate her disability. However, the court dismissed the employee’s claims because the employee was aware of but failed to comply with the employer’s requirement that employees disclose medications, and because she failed to inform the employer of a need for accommodation.