This recent federal court decision makes me further question the utility of drug testing for most positions.

Let’s see if you agree with me.

The defendant operated a hotel and event venue. The plaintiff had an opioid addiction and had been prescribed methadone to treat her addiction. She took methadone daily.

In 2021, the plaintiff applied for the position of banquet bartender with the defendant. The plaintiff learned that she would need to take a drug test as a condition of employment. So, during the interview process, she shared with the defendant that she had a methadone prescription.

The two sides disputed what happened next.

The defendant told the court that the purpose of its drug policy is the safety of the hotel, staff, and clientele, and it was imperative to drug test bartenders because they service customers, their work involves knife skills, and there are concerns related to overserving and DUIs. It stated that the plaintiff declined to take the drug test because she was not comfortable doing so, and the defendant told her that due to their policy, they could not move forward without a drug test.

According to the plaintiff, she agreed to take a drug test and present paperwork from her doctors regarding her methadone maintenance program. However, the defendant would not agree to hire her because she could not pass a drug test “with flying colors.”

Let’s pause for a second to discuss the law.

While refusing to hire someone based on a disability or a perceived disability violates the Americans with Disabilities Act, and the ADA does not protect individuals who are currently using illegal drugs, this exclusion does not apply to those who are recovering from drug addiction by, for example, taking methadone as legally prescribed by their physicians.

The defendant offered that it had a long history of hiring people recovering from addiction, including individuals currently taking methadone. These individuals “all followed the process and took their drug test,” and methadone was not a bar to hiring for any of these employees.

The problem for the defendant is that judges don’t determine credibility; juries do. So, because the plaintiff had also produced evidence from which a jury could reasonably conclude that the defendant flat-out refused to drug test her (and not the other way around), the court decided that a jury could just as easily conclude that discrimination was more likely a motivating factor in not hiring the plaintiff.

This decision is not exactly a ringing endorsement for drug testing as a condition of employment, is it?

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Hey, before you leave, be sure to register for the return of The Employer Handbook Zoom Happy Hour on Friday, November 10, 2023, at Noon ET. I’ll be discussing antisemitism, its impact on the workplace, and how companies can address it. My guests will be some employment lawyers who are very passionate about this issue: Amy Epstein Gluck, Jonathan Segal, and Gregory Slotnick.

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