October 22, 2020

Job Descriptions Save the Day! Substance Use, Testing & the ADA

An employee has a minor accident while driving his employer’s vehicle. Following company policy, he submits to a post-accident substance test with positive results for opiates and oxycodone. The employer removes his safety-sensitive duties, including driving and he continues to work. The employee’s and employer’s doctors subsequently do not agree on his ability to safely perform the safety-sensitive duties.

To break the tie, the employer offers the employee the choice of two physicians from whom he should obtain a third opinion, at the company’s cost. The employee declines and suggests a different physician. The employer declines. The employee is then placed on leave and given the choice: be examined by one of the two doctors they offered or be discharged for insubordination. Guess which the employee chose.

After he is fired, the employee files a charge with the EEOC alleging violations of the ADA and subsequently sues for the same. After the judge criticizes the employee’s brief, its failure to address his claims, and incorrect pagination (makes you wonder if he had an attorney?), she found in favor of the employer.

Why? The judge agreed that under the ADA, an employer “cannot wantonly compel an employee to submit to medical examinations or inquiries.” But an employer may require them if they are job related and consistent with business necessity. One way is to show objective evidence that the employee’s medical condition would impair his ability to perform “essential job functions.”

Lessons learned? The judge looked at the employee’s job description and found it included these safety sensitive duties. Without those duties, “the position would be diluted beyond recognition.” Ensure your job descriptions are current and include all the essential functions of the employee’s job.