If you use a third-party to drug test job applicants, then stop what you’re doing and read this post!

On a clickbait scale of 1-10, maybe a 9.

First, I must apologize for something other than the clickbait; specifically, yesterday’s cop-out. I had 800 words typed on a recent case in which a federal court denied a defendants’ motion to compel arbitration. It was a great juxtaposition ** Googles juxtaposition ** yeah, juxtaposition to Tuesday’s post about the SCOTUS ruling on class-action waivers and I was going to explore with you some essential elements of an arbitration provision.

And then I realized that one of the parties was a client.

Oopsies.

So, if you have a burning nerdy desire to talk arbitration agreements today, pick up the phone and call me.

Communication Breakdown.

[cue music]

Late last week, the U.S. Equal Employment Opportunity Commission announced here that it had settled an Americans with Disability Act lawsuit with a midwest employer. Here’s more from the EEOC press release:

According to the EEOC’s lawsuit, [the employer] withdrew an offer of employment to an applicant for a cashier position … based on a drug test showing the lawful presence of a prescribed medication. [The employer] asserted it relied on a third-party testing vendor to inform [the employer] that the applicant was taking prescription drugs. 

Indeed, after the EEOC sued the employer, the employer tried to add the thirty-party testing vendor as an additional defendant in the lawsuit. According to the employer, it contracted with the third-party testing vendor to have it analyze the employer’s drug tests of prospective new employees and inform the employer whether the test results were negative or non-negative for drugs.

The employer further claimed that “if the sample analysis yielded a non-negative result, then [the third-party testing vendor] was obligated to send the drug test to a medical review officer to determine whether the non-negative result was a consequence of the test subject taking a legal prescription drug. Then, if the non-negative result was due to a legal prescription drug, [the third-party testing vendor] would report the test results as negative to [the employer].”

You can probably guess what happened next.

• An individual applies for a job, which is contingent on a negative drug test
• The drug test comes back positive for prescription drugs.
• The employer assumed that the drug test previously had been sent to a medical review officer to determine if there was a valid legal reason for the non-negative result.
• Based on this assumption, it rescinded its employment offer to the applicant.

Oopsies.

Employer takeaways.

You can see how this would be bad for the employer to rescind a job offer when an applicant may be using prescriptions drugs to treat an underlying disability. Unfortunately for the employer, the court tossed the third-party complaint against the third-party testing vendor. So, presumably, that left the employer with no outs left, but to settle with the EEOC. The employer settled for $45,000.

While these things happen, situations like these are a wake-up call for employers to be very careful when making employment decisions based on individuals using prescription drugs. Good communication is paramount. And, like Santa Claus, you make a list, and you check it twice. Because once you’ve rescinded a conditional job offer, it can be tough to get that toothpaste back into the tube.

Finally, “Happy GDPR Day,” said no one.

Glass half full, a little less than half of my email subscribers didn’t update their email subscription preferences. So, bye bye.  And now I save a few bucks each month on my Mailchimp subscription.

But, thanks to each of you for hanging with me. You know I appreciate that. Have a great weekend.