March 20, 2025
ADA Interactive Dialogue Takes Two!
An employee tested positive for the presence of amphetamines and opioids during a work-mandated random drug test. When the Medical Review Officer (MRO) was unable to reach the employee after several attempts, so he could provide an explanation, the employer suspended him. He waived his right to an investigation and agreed to participate in a drug rehabilitation program. During that time, he was not considered for another position in which he had expressed an interest, and he resigned. So, what’s the problem?
Prior to the drug test the employee had completed a form to self-report that he was prescribed these medications. So, the employee subsequently sued alleging the employer discriminated against him in violation of the ADA by suspending him and failing to consider him for another position when it knew about his medications. The District Court found in favor of the employer and the 7th U.S. Circuit Court of Appeals (covering IL, IN, WI) agreed. Why?
The court found among other reasons that “it was [the employee’s] actions—failing to respond to the MRO and then opting to waive his right to an investigation—not [the employer’s] actions, that led to his removal from service…self-reporting medications before a positive drug test is not a substitute for providing proof of prescriptions after a positive test. Indeed, such self-reports are not evidence of a valid prescription at the time of the positive test.”
Lessons learned? It is not all on the employer. When we invite an employee to provide us with medical information as permitted under the ADA, the employee is obliged to respond. If the employee declines, the employee may then lose the protection of the ADA.
