You don't want to bring someone into your company that tests positive for amphetamines! That conjures up images of Walter White. You don't need that in your workplace. So it may seem perfectly logical that International Paper withdrew a job offer from a man who tested positive for amphetamines on a pre-employment drug test.
What may not seem logical is why the EEOC (Equal Employment Opportunity Commission) is suing on the candidate's behalf. You need to pay attention if you drug test your employees, because not every positive drug test should result in a job loss. Here's why.
The candidate disclosed he had ADHD and that he took Adderall
Attention-deficit/hyperactivity disorder can be covered under the Americans With Disabilities Act (ADA). The ADA kicks in once the employer becomes aware that the candidate has ADHD. It protects employees and job candidates.
Adderall is a legitimate medication prescribed by physicians to treat ADHD. Over 2.5 million Americans take stimulants such as Adderall or Ritalin (or their generic counterparts) for their ADHD. Both will cause a positive drug test.
The EEOC argues that the company should have considered his disability. He had a legitimate prescription for a legitimate medical condition. By automatically rejecting him for his positive test, the EEOC argues, they discriminated illegally against a job candidate for his disability.
What if the job is safety-related? Then could you refuse to hire?
If someone is on a medication that makes them sleepy, you can legitimately refuse to hire them in a job that requires alertness at all times. Sometimes, medications can prevent someone from doing a particular job.
I reached out to International Paper last week and asked for details about the job this man applied for. They did not answer me. This is not abnormal in a lawsuit--frequently, the company will remain silent per the advice of its attorneys.
However, Brooke López, the EEOC trial attorney, responded to my requests and said, "The claimant, in this case, was offered a general entry-level position at International Paper's container plant in Grand Prairie, Texas. There is no indication that the claimant's job was dangerous or required high levels of safety clearance."
In other words, it wasn't a safety issue. She claims this was a direct response to the candidate's disability, which would be a direct violation of the ADA.
However, if there was a safety concern, you still could not immediately yank back the job offer. First, you would need to go through the "interactive process" with the job candidate.
The interactive process
This is a back-and-forth between an employee (or candidate) and the company. In this case, the employer could ask for verification that the prescription was legitimate. (Although, the drug testing facility should have done that, to begin with.) Then they could talk about a reasonable accommodation for the employee.
International Paper could have given the candidate paperwork to take to his physician, who could then explain if the candidate should be excluded from any safety-related jobs because of his medication.
Disability accommodations have to be reasonable. For example, if you hire a bartender for your nightclub, it wouldn't be a reasonable accommodation to provide a quiet workspace to combat the bartender's migraines. However, it probably would be a reasonable accommodation to provide a quiet workspace for your accountant with migraines.
The company, in this case, would need to show that working while on a legally prescribed amphetamine would be unreasonable. Otherwise, they would need to make the accommodation of allowing him to work with the positive test.
How this might affect your business
Pre-employment drug testing is widespread, but stop and ask yourself why you do it. If positions are safety-related or regulated by the Department of Transportation or another government office, you'll need to do drug testing.
But if not? Ask yourself if this makes a difference. Many companies have dropped drug testing altogether because of the tight labor market.
It's certainly your right to test all your candidates for drugs, but you should be looking for two things only.
- Illegal drug usage
- Safety-related concerns
You do not have to employ people who use illegal drugs (although people currently receiving treatment for unlawful drug usage can be covered under the ADA). You don't have to put employee safety at risk.
Make sure your drug testing lab only reports back to you illegal drug usage--for instance, if someone tests positive for amphetamines but cannot provide a legitimate prescription for medication. If you have safety-sensitive positions where legal medicine could cause problems, then when someone tests positive and has a valid prescription, immediately bring in your employment counsel and begin the interactive process.
People with ADHD, chronic pain, epilepsy, or other conditions deserve to work. Don't let the prescriptions that keep them healthy keep you from hiring them. And if you do, expect the EEOC to knock at your door.