The 11th Circuit court case out of Alabama, Harrison v. Benchmark Electronics, involved an employee who was tested before hiring and found to be positive for barbiturates. The court held that although testing for illegal drug use is not a medical inquiry, obtaining information that might have a medical explanation crosses the line. Citing an EEOC Enforcement Guidance regulation, the court stated: “If an applicant tests positive for illegal drug use … the employer may validate the test results by asking about lawful drug use or possible explanations for positive test results other than illegal use of drugs.” However, the regulations, together with the EEOC guidelines, prohibit asking disability-related questions.
So, although employers may conduct follow-up questions based on a positive drug test, this type of questioning has limits. In this case, whether or not the manager who chose not to hire the plaintiff knew about his epilepsy before he decided not to hire him was left for a jury to decide.
Lors v. The South Dakota Attorney General (US Court of Appeals for the 8th Circuit #09-1382)
In this typical case, the plaintiff claimed that his diabetes led to his termination, while the employer argued that the cause was his poor performance as a team leader. In an interesting twist, after the employee was demoted from being a team leader, he claimed that because the stress of his new position worsened his diabetic problem, a reasonable accommodation would be to promote him back to his team leader position. This is a novel approach, if I’ve ever heard one! The court, wisely, stated: “Even if, as Lors contends, he could better control his diabetes as a team leader, we have previously explained that the ADA is not an affirmative action statute.” The company was not required to employ him as a team leader simply because this would allow him to maintain better control of his diabetes.
