Employers know that, despite preventive measures, accidents can happen. But accidents involving employees who might be under the influence have particular gravity, as they can indicate or lead to larger problems.

At Dura Automotive Systems Inc.’s Lawrenceburg, Tenn., facility, employees routinely assembled vehicle windows, tested products and drove forklifts. When the plant’s accident rate surpassed that of comparable plants, management suspected that drug use–illegal or legal–might be to blame.

Dura instituted a policy that forbade employees from using legal prescription drugs that could jeopardize performance or safety. An independent testing company screened employees for 12 substances, including some found in legal medications. Forty-four of the 500 screened employees tested positive for prescription drugs containing the banned substances. Dura ordered the employees to take a 30-day leave of absence, and upon their return, required them to pass another test to stay with the company.

Seven employees with legal prescriptions procured doctors’ notes stating that their performance wouldn’t be affected by their medication. Dura wouldn’t accept the notes and told the employees they could instead transition to drugs without the prohibited substances. The employees didn’t comply and were terminated; they sued Dura for violating Section (b)(6) of the Americans With Disabilities Act (ADA).

On Nov. 3, 2010, the 6th Circuit ruled in Dura’s favor in Bates v. Dura Automotive Systems Inc. In his opinion, Judge Boyce Martin asserted that the plaintiffs were not disabled and therefore were not covered by Section (b)(6).

Determining Disability

The ADA defines disability as an impairment substantially limiting major life activities. Section (b)(6) prohibits discrimination against “a qualified individual with a disability because of the disability” by using “qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability,” unless the test is job-related and necessary for the position.

The district court found that the plaintiffs weren’t disabled because they couldn’t prove their ailments limited their ability to work, which is a major life activity. When the court didn’t dismiss the plaintiffs’ claims, Dura motioned for clarification on whether a person must be disabled to pursue a claim under (b)(6). The district court ruled that nondisabled people can sue under (b)(6) but certified the issue for appeal.

The 6th Circuit scrutinized the language of (b)(6) and determined that it only protects disabled individuals. The court reversed and remanded the district court’s decision and ordered the dismissal of the plaintiffs’ claims.

However, the case was tried under the original ADA definition of disability. The ADA Amendments Act, which took effect on Jan. 1, 2009, substantially changed this definition. Thus a similar case filed now may well have a different outcome (see “Broader Qualifications”).

“The ADA Amendments [Act] will make it easier for people to classify themselves as disabled,” says Brian Hall, a partner at Porter Wright Morris & Arthur. The amendments expand the list of major life activities to include an array of tasks, such as bending, concentrating and sleeping.

Users and Abusers

The changes in the ADA’s definition of disability and state-specific testing laws can make it challenging for employers to confidently establish drug policies. “If you’re an employer with employees in all 50 states, it really is an administrative headache,” says Kathryn Russo, a partner at Jackson Lewis and leader in the firm’s Drug Testing & Substance Abuse Management Practice Group.

But Russo says that shouldn’t discourage employers. “If you have people abusing prescription drugs, they are very well creating a dangerous workplace,” she says. Employees are increasingly testing positive for painkillers such as Vicodin and Oxycontin, and although these drugs are legal when obtained with prescriptions, they’re as addictive as other commonly abused drugs in the workplace, including marijuana, cocaine, methamphetamines, Ecstasy and opiates.

Drug-test provider Quest Diagnostics reported a 40-percent increase in employees testing positive for opiates from
2005 to 2009 and an 18-percent increase from 2008 to 2009 alone. Workers involved in accidents are four times more likely to test positive for opiates.

Hall says the key to initiating workplace testing is communicating safety concerns to employees. “It’s important to demonstrate the real necessity for it,” he says.

There are two kinds of drug-testing methods: reasonable suspicion, which tests an employee whose behavior mirrors that of someone under the influence; and random, which periodically tests a randomly selected group of employees. Russo says only a qualified medical review officer should analyze employee tests. To comply with ADA, employers should individually assess employees who test positive for legal prescription drugs and determine if the medications directly threaten safety or if reasonable alternative accommodations should
be made.

Some employers may be hesitant to test for prescription drugs because of sensitive stereotypes associated with specific medications and the possibility that drugs are being taken for conditions that qualify as disabilities.

“If an employer really wants to be conservative, they may want to stick with just testing for illegal drugs; you won’t run into any ADA issues,” says Russo. “The problem with deciding to test for prescription drugs is doing it correctly and making sure you don’t make overly generalized conclusions when someone tests positive.”