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Friday, October 31, 2014

Urine Drug Testing Latest ADA Battleground

By Tommy Eden

Laura Jones completed an application for employment at the Wal-Mart store in Cockeysville, Maryland and was told that she would have to take a drug test if offered a sales position. She told an assistant store manager that she had end stage renal cancer that prevented her from taking a typical urine test. Jones then went to the drug testing collection center and requested that an alternative specimen test be performed; which the center said could be done. She then took that information back to the store manager who refused to allow for the alternative specimen test and her application was closed for failing to submit to the urine drug test; according to the allegations of the lawsuit as reported in the EEOC Press Release.

On October 21 the Cockeysville Wal-Mart store entered into a consent decree with the EEOC, who had earlier allegedly in a federal court lawsuit brought on behalf of Jones, that the store had breached the Americans with Disabilities Act by failing to reasonably accommodate her disability by refusing to accept an alternative specimen test. Wal-Mart agreed to pay Jones $72,500 plus entered into a consent decree that provides for notice to applicants of alternative specimen testing for those persons "whose physical condition prevents them from producing urine" and who request some accommodation in the pre-employment drug screening process. The consent decree provided for a blood test as the alternative specimen that is rarely used in workplace drug testing.

Wal-Mart also agreed to provide 90 minutes of hiring manager training on the accommodation process and to post a mandated notice to all store employees. The case is the EEOC v. Wal-Mart Stores East, LP in the Baltimore United States District Court. The EEOC also has a pending case against Kmart involving an almost identical issue in Hyattsville, Maryland.

Common Sense Counsel: since 2001 the United States Department of Transportation has followed a shy bladder procedure found at 49 CFR Parts 193 & 195 of the DOT drug and alcohol testing regulations. This process is meant to differentiate a legitimate medical explanation for not being able to produce a urine specimen from those trying to beat a drug test.

The smart course of action for an employer faced with any drug testing issue is to use a well-qualified Medical Review Officer (MRO) to guide your decision-making. MROs are medical doctors educated on the DOT regulations; alternative specimen testing and can make the medical call for you. With this new ADA wrinkle the EEOC has thrown into the process by this consent decree, employers would be wise to develop a notice, written procedure and training for situations when an applicant like Laura Jones hands you an application and says, “sorry I can’t go.”

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 and follow on twitter tommyeden3