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Testing employees for illegal drug use is one thing. But what about testing them for legal prescription drug use? The latter concept has one Tennessee employer in hot water, battling two separate lawsuits in which employees claim they were forced to undergo unlawful drug tests that checked for various prescription medicines such as painkillers. The suits claim that the employer — Dura Automotive Systems Inc., an auto parts supplier — had no valid reason to order the tests and took adverse action against employees who tested positive for various legally prescribed drugs, including firing some who refused to stop taking the medications or couldn’t work without them. The most recent lawsuit was filed by the Equal Employment Opportunity Commission in federal court in the Middle District of Tennessee on Sept. 11. The suit alleges that the drug tests — initiated in 2007 — were unlawful medical inquiries under the Americans with Disabilities Act. The EEOC contends that Dura Automotive screened out persons with disabilities, failed to keep confidential the information obtained from the drug tests and took unlawful adverse actions against at least 30 employees who tested positive for legally prescribed medications. The second lawsuit, a private class action filed last year in the same court, has been stayed pending review of certain legal issues by the 6th U.S. Circuit Court of Appeals. The suit was filed on behalf of seven employees, including one woman who suffered from chronic back pain, depression and bipolar disorder, and was fired two months after drug tests revealed she tested positive for “certain chemicals.” According to court documents, the woman was never cited for any safety violations while on her prescribed medications. The woman alleged that after she took the drug test, a nurse singled her out in front of other employees, announcing that she had just tested positive for certain chemicals. For employment attorney Robert Pattison, who said he has never before seen a case involving prescription drug testing in the workplace, the lawsuits offer an important message to employers: Any drug testing must proceed under the protections of the ADA. That means have a good reason for drug testing employees, stressed Pattison, managing partner of the San Francisco office of White Plains, N.Y.-based Jackson Lewis. Then make sure you do it properly, he added: Don’t single anyone out, and keep the results confidential. “The fundamental question is, ‘Was the testing [at Dura Automotive] job-related, and was there some business necessity to implement the testing program?’ ” Pattison said. “ As a general rule, you can’t just ask someone, ‘Are you taking prescription medications?’ “ Pattison last year won a key drug testing battle in California, when the state Supreme Court upheld an employer’s right not to hire a job applicant because the applicant used marijuana for medicinal purposes. Dura Automotive, meanwhile, disputes the argument that it had no business justification for ordering the drug tests. It also denies singling out anyone who tested positive for a certain drug — as plaintiffs have alleged — or taking any adverse action against an employee over the drug test results. Robert Boston of Nashville’s Waller Lansden Dortch & Davis, who is representing Dura Automotive, said the tests were about keeping employees safe and preventing workplace accidents and injuries. “It was an effort to try to make sure that people could work safely and not be a risk to themselves and others,” he said. “If I’m working right beside you, I don’t want you running over me with a forklift.” Boston said that under Tennessee law, employers can test for any drugs if safety is deemed an issue. He said it doesn’t matter if a drug is legal or not, prescription or nonprescription. If a drug has an adverse affect on an employee’s motor skills, especially when it is being taken in combination with other drugs, an employer has a right to know. For example, Boston said, if an employee regularly takes the depression drug Zoloft and then mixes it with a painkiller due to a chronic back problem, that could create a safety problem in a plant where heavy machinery and sharp glass is used everyday. “Dura still believes that the testing was done consistently with the ADA,” Boston said. The EEOC disagrees, alleging the company went too far in testing for legal drugs that it had no business testing for. “The ADA allows employers to test employees for controlled substances, but testing for legally prescribed medications and forcing employees to disclose their medical reasons for taking them clearly exceeds what the ADA allows an employer to do,” said Katharine Kores, director of the EEOC’s Memphis district office, in a statement. “The situation at Dura Automotive was aggravated by the company’s humiliating those who tested positive by conducting its tests in a manner that immediately made their identities known to its entire work force.”

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