EEOC claims Disability Discrimination when Employee Fired for Failed Drug Test

While COVID-19 has been on many employers minds, the federal agencies are still very much occupying their resources going after Employers for what they see as violations of established discrimination law. Drug tests which may be used by employers in various stages of employment including hiring, accident testing and random testing can also lead to potential issues under the Americans with Disabilities Act as Airswift discovered when the EEOC brought a suit against them.

In September 2020, the Equal Employment Opportunity Commission (EEOC) filed suit in the Southern District of Texas Corpus Christi Division claiming the Houston-based staffing firm Airswift refused to accommodate an employee with a disability. Airswift is a staffing firm focused on the oil and gas industry and the employee that forms the basis of this suit worked as a building superintendent in a liquid natural gas facility in Gregory, Texas.

According to the EEOC’s lawsuit, at the beginning of the employee’s start of employment, he had told his employer that he was in remission for thyroid and prostate cancer and that the prescription medication to treat a side effect of his cancer treatment could cause false positive for illegal substances on a drug test. The EEOC lawsuit alleges that when the building superintendent later failed a urinalysis drug test, he requested the accommodation of a retest using either a blood or hair sample. Per the EEOC lawsuit, rather than allow for this accommodation in testing, Airswift fired him.

When a failed drug test comes back positive, many employers have policies and procedures that indicate immediate termination is the next course of action. In this scenario though, the EEOC claims that providing for this alternative testing is a reasonable accommodation required under the Americans with Disabilities Act that Airswift should have allowed for unless they could show undue hardship.

Per the EEOC Bulletin - “An alternative form of testing, such as hair follicle or blood testing, would have given this building superintendent all he wanted - the opportunity to continue doing his job,” said Eduardo Juarez, a supervisory trial attorney in the EEOC’s San Antonio Field Office. “Barring an undue hardship, employers are required by the ADA to reasonably adjust their policies to accommodate individuals with disabilities.”

The tricky part about this for Employers is that their drug policy may be written appropriately or in a lawful manner but what the EEOC is stating is that they should anticipate adjusting it if there is a reason to accommodate under the Americans with Disability Act to avoid a charge of disability discrimination. For more on ADA or EEOC, check out the EEOC website.