Wednesday, August 27, 2014

Drug Testing En Masse Risky

A federal appellate court gave a pyric victory to an employer in Tennessee, remanding a case back to the trial level because the reasons for mass drug testing of its workforce might have a reasonable basis and not be violative of the Americans with Disabilities Act; that it was an issue for the jury and not the judge.

Dura Automotive Systems is a manufacturer of glass windows for cars, trucks, and busses. Its facility contains a variety of heavy equipment and active machinery, including high-temperature injection molds, presses, air powered tools, cutting machines, die casts, fork lifts, tow motors, hi-lo lifters, and portable cranes.

Between the end of 2006 and early 2007, the company claimed, workers at its Lawrenceburg, Tennessee plant experienced substantially more work-related accidents than Dura's other facilities. Several employees allegedly also tested positive for controlled substances after their accidents.

Dura said that Lawrenceburg police had alerted its local management of illicit drug activity taking place at the plant.

The company decided to implement a new substance-abuse policy, which appeared in the March 2007 revision of the employee handbook and a July 2007 document issued by the company’s human resources department.

Pursuant to this policy, Dura reserved the right to conduct drug tests on its employees, and employees were expressly prohibited from “being impaired by or under the influence” of alcohol, illegal drugs, prescription medications, or over-the-counter drugs, if the use of such drugs endangered others or affected their job performance.

In May 2007, Dura ordered a plant-wide drug screening of the Lawrenceburg facility’s more than 400 employees. Dura hired Freedom From Self to administer the drug tests to its workforce.

Dura instructed FFS to test for 12 substances—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates,oxycodone, phencyclidine, and propoxyphene—some of which appear in prescription medications.

Velma Bates, Claudia Birdyshaw, Mark Long, John Toungett, Carolyn Wade, Richard White and Willarene Fisher had all worked for Dura at its Lawrenceburg plant.

Between them, Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher, had prescriptions for oxycodone, Cymbalta, Didrex, Lortrab, Soma, and Xanax. They claimed that their use of these medications was what yielded positive results on the FFS drug test.

Dura placed all workers who tested positive on a 30-day leave of absence and instructed them to inform FFS if they were taking any prescription medications that contained the prohibited drug compounds.

An FFS employee then identified which of the medications carried a warning from the manufacturer for users not to operate dangerous machinery while taking the drug. FFS relayed this information to Dura, which informed the employees taking the medications that they would be terminated if they continued to use the drugs. However, if the employee tested negative after a second drug test, Dura said the worker would be allowed to return to work.

Wade and Fisher complied with the requirement and Dura reinstated them to their positions. But the remaining plaintiffs continued to take their medications and Dura fired them after they again tested positive.

After the drug testing, Dura claimed, the accident rate and amount of property damage at the Lawrenceburg facility decreased.

Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher filed a complaint against Dura in May 2008 alleging the company had violated the ADA by subjecting them to an unlawful drug screening and then terminating them on the basis of their disabilities, or perceived disabilities.

There is some procedural history where the case goes back and forth between the trial court and the appellate court to resolve issues such as standing to sue, reclassification under different portions of the ADA and other issues.

Ultimately the trial judge found that Dura's drug testing of its workforce qualified as a medical examination or disability inquiry, in violation of Section 12112(d)(4), as a matter of law. The jury then returned a verdict collectively awarding the plaintiffs over $870,000 in damages.

On appeal, Dura argued that its drug testing had screened for substances that were "either illegal or, even if legally prescribed and used, may impair an individual’s mental alertness or motor skills" thus constituting an unreasonable business risk given the busy factory and heavy machinery, thus the drug testing was "job-related and consistent with business necessity."

The plaintiffs said that Dura's "plea for safety inside the front door of the plant," was a merely a pretense for conducting a drug test protocol that "was designed to seek information on possible weaknesses in employees." Thus, they said, the "substance screen as practiced by Dura Automotive Systems was a medical exam."

The 6th Circuit said the issue was not so clear-cut and that the issue of whether Dura violated the ADA should have gone to the jury and could not be found as a matter of law.

"Much depends on Dura’s credibility," the court said, stating it was possible a jury could see Dura’s explanation as a pretext, or find that the drug test had targeted information about employees' physical or mental health, regardless of Dura’s stated intent.

But it was not a matter of law that Dura violated the ADA.

The case is Bates et al. v. Dura Automotive Systems, No. 11-6088.

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