Just Say No (To Blanket Drug Exclusions For Job Applicants)

Everyone (hopefully) knows by now that the Americans With Disabilities Act (“ADA”) prohibits discrimination – in hiring or in the terms and conditions of employment — on the basis of disability or perceived disability.

What about drug tests administered to job applicants?  How do they fit in?

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“Even when drug tests are permitted under the ADA, they cannot be used to discriminate against qualified people with disabilities,” said an EEOC attorney recently when a new lawsuit was filed. “Com­panies need to be mindful that they may need to make exceptions to drug use policies as a reasonable accom­modation.”

The illustrative lawsuit?

A job applicant for a position at an Arizona car dealership company was given a job offer, but then tested positive for a drug which the company had listed as one of number of substances that would automatically disqualify applicants for hiring.   The job offer was rescinded.

The applicant, however, said that the drug was “legally prescribed to treat a disability and would not affect her ability to perform the duties of the job.”

No dice, said the company.  The list is the list!


The company refused any proof which she offered (presumably about her need for a legally prescribed medication to treat a disability), or her offer to change her medication.  The list is the list!

Seems pretty “unreasonable” on the part of the would-be employer, right?

To recap: A “reasonable accommodation” was offered by the job applicant suffering from a disability which seemingly would cause no undue hardship to the employer – or any hardship at all, it would appear — but the company refused to even engage in an “interactive process” to see if such an accommodation was achievable without undue burden.

The EEOC thinks so too, and filed suit.

Takeaway:   The EEOC Phoenix Acting District Director said it:

“Employers must maintain responsible hiring practices and be understanding about their employees’ backgrounds.  A blanket exclusion policy based on drug use does not accomplish that goal, and may cause problems for the employer if it applies such a policy.”

The list is the list – until the Court rules otherwise?

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]