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Tuesday, January 19, 2010

Improper Medical Inquiry Arising From Workplace Drug Test Results in ADA Suit

(11th Circuit 1/11/10)

By Tommy Eden, Attorney

John Harrison sued Benchmark Electronics Huntsville, Inc. (“BEHI”), alleging that it engaged in an improper medical inquiry, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(d)(2). The Huntsville, Alabama U.S. District Court granted summary judgment in favor of BEHI on all claims and the 11th Circuit reversed holding that a temporary worker at an electronics manufacturing company can sue the employer for asking him prohibited questions about his health following a pre-hire workplace drug test, even if the employee is not considered legally disabled.

Harrison worked as a “debug tech,” and his responsibilities included identifying problems with, repairing, and testing electronic boards. Although he suffers from epilepsy and took barbiturates to control his condition, the Equal Employment Opportunity Commission (“EEOC”) determined that he did not have a disability as defined under the ADA. At the time Harrison commenced his temporary position at BEHI, the company had a practice of screening temporary employees for potential permanent employment. If a supervisor believed that a temporary employee would meet BEHI’s needs, he would invite that employee to submit an application for employment and complete the necessary drug testing and background check.

Harrison claimed that the manner in which BEHI’s handled his workplace drug test results, and application for a full-time position, violated the ADA. He contended BEHI did not hire him for a full-time position - and eventually caused him to be fired from a temp agency (Aerotek) - because of a perceived disability. Harrison had taken barbiturates to control his epilepsy since he was two years old. A pre-hire workplace drug test detected the barbiturates he was taking under a doctor’s prescription. BEHI’s human resources manager was notified that Harrison’s test had come back positive and was awaiting review by the Medical Review Officer (“MRO”) when it was requested that Harrison “be sent her way.” She stated that she did not tell the hiring manager about the positive drug screen because she had a duty to keep such confidential. Upon arriving at HR, Harrison was then questioned about his prescription while the hiring manager was in the room. The HR manager then called the MRO and passed the phone to Harrison, who answered a series of questions about the medication. The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. He replied that he had epilepsy since he was two years old, he took barbiturates to control it, and he stated the amount of his dosage. While the hiring manager did not ask any questions, he did remain in the room during this colloquy and heard Harrison’s responses to the MRO’s questions.

BEHI’s MRO eventually cleared the drug test results because of the prescription and authority to hire Harrison was given. However, the hiring manager did not extend the full-time job offer to Harrison and, in fact, asked Harrison’s temporary employment agency not to send him back to BEHI. The employment agency eventually fired Harrison. BEHI contended it did not hire Harrison because he had threatened the hiring manager and because of concerns over his performance. According to the hiring manager, he was told that Harrison threatened to “put his foot up [his] rear if he did not ease off of him,” and to sue BEHI if he was not hired. When later questioned about the timing of the alleged threats, it was admitted that they were not made until after the hiring manager had stopped the offer letter.

With this decision the 11th Circuit has decided to join a number of other federal appellate courts around the country (7th, 8th, 9th & 10th) by formally recognizing the right of a person who is not legally disabled to nevertheless pursue an ADA suit under 42 U.S.C. 12112(d)(2) with allegations they did not get hired because of a perceived disability. The ADA section involved in Harrison’s case bars employers from requiring a medical exam or pose questions to an applicant about whether the person is disabled (or the extent of the disability) before extending a job offer. The employer is only permitted to ask whether the applicant can “perform job-related functions.”

Common Sense Counsel: if I ever decide to teach law school, this is the case I want to use to show: 1) how to mishandle workplace drug testing results; 2) inappropriate and premature reporting by the MRO; 3) how to conduct a non-confidential MRO interview; 4) how to create a “perceived disability” case under the ADA for a non-disabled person; and 5) how bad facts can create liberal law in the 11th Circuit. Risk reduction strategy begins with having the right workplace drug testing policy language relative to pre-duty disclosure of prescription medications by employees in safety sensitive positions, having an ADA reasonable accommodation policy in your handbook (that discusses the interactive process), having essential job functions identified in your job descriptions and training your managers on what is, and what is not, appropriate under the ADA. Once the new ADA Amendments proposed regulations become effective I am confident that “perceived as disabled” claims will become more common.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at