By Tommy Eden
In Bates v. Dura Automotive Systems, Inc., the 6th Circuit Court of Appeals (Kentucky, Michigan, Ohio, and Tennessee) on November 3, 2010 ruled that only persons with disabilities can pursue claims under the Americans with Disabilities Act’s provisions on qualification tests and standards. Seven employees at the Lawrenceburg, Tennessee auto-parts manufacturing plant had been dismissed for testing positive for prescription-drug use. The plant had a high accident rate, as compared to similar manufacturing plants, and in response had adopted a 12-panel drug-test program in which banned substances impairing effect prescription drugs which created a safety risks. The employees who tested positive for banned prescription drugs were given the option of switching to other drugs not containing the banned substances, and it was only after the seven employees tested positive again for the banned substances were they terminated.
Other Circuits have held, including the 11th Circuit, that some provisions of the ADA generally have been interpreted to cover non-disabled individuals who are discriminated against as perception disabled. The EEOC sued Dura directly on this issue claiming the testing violated the ADA. Dura won out in the end on the argument that the plaintiffs, as non-disabled persons, had no standing to sue under the statute.
Common Sense Counsel: Having a state law legally compliant drug-free workplace program, with legally compliant pre-duty disclosure requirements with regards to impairing affect medication language, and training supervisors on reasonable suspicion are the foundational steps of a good risk reduction program. The State of Alabama offers a 5% workers compensation premium for adopting a program in compliance with the Alabama Drug-Free Workplace Act; similar to discounts offered in 14 other states.
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 firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com