The EEOC recently filed a lawsuit in an Indiana federal court claiming that an employer unlawfully failed to reasonably accommodate an applicant so that she could complete a required drug test. Read on if your business is covered by the Americans with Disabilities Act (ADA).
An applicant for a server position had a disability. She had a physical impairment that substantially affected the normal operation of her bladder and her ability to urinate. The employer offered her a full-time position as a server, subject to the condition that she pass a physical and drug screen. The applicant appeared for the exam and explained to the medical staff that she was born with a defective bladder, had surgery, and could only urinate via an opening in her abdomen with a catheter. Staff asked her to wait and questioned her about her condition within hearing range of approximately 25-30 people. After almost two hours, the staff sent her home. They did not take her urine. They did not discuss alternatives to complete the drug screen. The applicant was informed that the employer’s policy was not to accept urine samples from catheters. The applicant’s test was marked as a “fail,” and the employer withdrew the offer of employment.
The EEOC’s allegations serve as a reminder about ADA requirements. I’ll focus on just two. First, the ADA’s definition of “discrimination” includes failing to provide reasonable accommodation (if needed) to the known physical or mental limitations of an otherwise qualified employee or applicant with a disability unless the accommodation would impose undue hardship. The definition also includes denying employment opportunities to an otherwise qualified employee or applicant with a disability if such denial is based on the need to make reasonable accommodation. Modification of examinations (for example, the method of drug testing) or policies (for example, a policy not to accept urine samples from catheters) may be a form of reasonable accommodation.
In short, the ADA may require covered employers to reasonably accommodate otherwise qualified applicants with disabilities in order to enable them to complete the pre-employment process. Consider keeping that in mind if, because of a physical or mental impairment, an applicant cannot, without reasonable accommodation, complete an online application, pre-employment test, job simulation, drug test, or other aspect of the application process.
Second, discussion of the applicant’s medical condition within hearing range of others may be problematic under the ADA (as well as under HIPAA and State privacy laws). Under the ADA, applicant and employee medical information must be kept confidential, with the following exceptions: (i) supervisors and managers may be informed regarding necessary restrictions and accommodations; (ii) first aid and safety personnel may be informed if the disability might require emergency treatment; and (iii) government officials investigating compliance with the ADA shall be provided relevant information on request.
*These facts are from the Complaint (below), and nothing in this post is intended to suggest the allegations are true.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)