Employers are familiar with the process of making reasonable accommodation in the workplace. Maybe your new employee needs a special chair due to a back problem or a special keyboard for an employee who has a neurological condition. But do you have a process/policy in place for an applicant or employee who requires accommodation for employment drug testing? If you don’t, you should.

A jury recently awarded an applicant over $400,000.00 after she was denied employment as an activities coordinator because of a failed drug test. The job offer was contingent upon the successful completion of a background check and drug screen. The applicant had informed the interviewer that she would fail the drug test due to a prescribed medication she takes for PTSD. The activities director told the applicant that her prescribed drugs would not affect the tasks of the position and that the drug screening provider would take the information regarding her prescribed medications.

When the applicant went for her drug test she had her prescription information with her, however, the facility did not take the information at that point. Prescription information is typically not taken at the time of the test, especially when the facility handles only the collection of the specimen to avoid HIPPA issues. Non-negative drug tests results typically go to a Medical Review Officer (MRO) who will contact the applicant directly regarding non-negative results and any medications which may have caused the result.

In this case, the applicant was never contacted regarding her prescriptions and when she tried to discuss the issue with the employer she was told that she should have been contacted by HR. Her call was transferred to HR, and she had to leave a voicemail message about her concerns over not being contacted to discuss her medications. Her offer of employment was rescinded the next day without the conversation about her medications taking place.

The applicant filed a complaint with the EEOC, who in turn sued the employer because they did not allow the applicant to explain her non-negative drug test and rescinded the offer. The jury agreed that the employer was liable, and they awarded $5,083.00 in back pay; $50,000 in compensatory damages; and $350,000 in punitive damages.

The EEOC provides guidance on the “Use of Codeine, Oxycodone, and Other Opioids: Information for Employers” which can be found at: Use of Codeine, Oxycodone, and Other Opioids: Information for Employees | U.S. Equal Employment Opportunity Commission.

Source: An EEOC Victory Provides Lessons on Applicant Drug Testing Accommodations - Ogletree