Walmart just entered into a Consent Decree with the Equal Employment Opportunity Commission (EEOC), which includes a $72,500 payout to Laura Jones, additional training for store employees, and posting a sign regarding disability accommodation. Why? Because Walmart answered a very basic question wrong. Let's see if you're smarter than a Walmart HR manager:
You make an employment offer to a woman that is contingent on passing a drug test. She says she is willing to take the drug test, but unfortunately due to end stage renal disease, she cannot produce urine. Do you?
A. Authorize the laboratory to do the drug test with blood?
B. Withdraw the employment offer because the employee didn't produce a urine sample within 24 hours of Walmart's request?
The answer, of course, is A, because you don't even need to know what the law is regarding disabilities and if end stage renal disease is covered by the Americans With Disabilities Act (ADA). You would pick A because you're a decent human being.
Walmart, allegedly, picked B and then, when Ms. Jones complained, chose to fight it. The end result is the consent decree and a bunch of other work. This could have been avoided if someone at Walmart had either a heart or a brain. Both weren't required to make this decision.
First, the heart: When someone says to you, "Hey, I have this horrible disease and it means that I have to go to dialysis because my kidneys don't work, so can I have a blood test instead?" You would say, "Oh my word! I'm so sorry. Absolutely, let's do the blood test instead."
And now the brains: Your HR department should be familiar with the ADA, which requires you to consider anything that substantially limits major life functions as a disability. Urinating, a savvy HR manager might say, is part of life and the fact that this woman has to go to dialysis multiple times per week or she dies, means she just might qualify under ADA. And what does ADA require? A reasonable accommodation. That's all. Just reasonable.
Some of you might say, "But retail is different from working in an office. You have no idea how many people try to come up with excuses to get out of drug tests." You'd be wrong, as I used to work in retail HR (although, I was mainly in the corporate offices). When people try to get out of a drug test it goes like this:
Employee: "Hey, I can't take this drug test, because, like I can't pee."
HR: "Cool. We'll do a blood test instead."
Employee: "Ummm, I've got a fear of needles. Can't do needles. I'll pass out."
HR: "No problem. We'll do a hair analysis. You know those can go back a lot further. Like 3 months."
Employee: "Never mind."
And then you never see that person again. That person is trying to get out of a drug test. Ms. Jones showed up at the laboratory and asked for a blood test. (Needles, of course, are no problem for someone who goes through dialysis multiple times per week.) This is not the normal behavior of someone who is trying to avoid the test.
Is it reasonable to substitute a blood test for a urine test? Absolutely. Now, is there an extra cost to a blood test? Probably. After all, it's more labor intensive for the lab, as someone actually has to do the stick. But can a big corporation (or really, a little company) claim the difference in cost makes it unreasonable? I doubt it.
And let's assume that there is no ADA and allowing someone to have a blood test instead of a urine test is just nice. What is the harm? What is the worst thing that will happen? Everyone will now want a blood test rather than a urine test? Hardly.
Remember, your business needs to stay in compliance with all laws, federal, state, and local. Some are very complicated; some are not. ADA can be complicated, but the reasonable accommodation for this particular one was so easy that it should have been a no-brainer.
As Tommy Eden at the Employment & Labor Insider notes:
"These EEOC lawsuits are a good reminder that the ADA reasonable accommodation obligation applies at the application and hiring stages as well as during employment. Employers are required to make reasonable accommodations that will allow individuals with disabilities to apply and be considered for jobs. This would obviously include accommodations in connection with the pre-employment drug testing process."
Don't be so concerned about having your policies followed that you forget to follow the law. And when the opportunity to be nice exists, choose nice. Walmart didn't, but you're smarter than that.