Court Dismisses ADA Claims Alleging “Excessive” Drug and Alcohol Testing

A federal court in New York dismissed a disability discrimination claim asserted under the Americans with Disabilities Act (ADA) based on allegedly “excessive” drug and alcohol testing of employees after they failed drug or alcohol tests required under the U.S. Department of Transportation (DOT)’s regulations. Vuono, et al. v. Consolidated Edison of New York, Inc., Case No. 1:18-cv-016365-VEC (S.D.N.Y. June 11, 2019).

The employer required the group of plaintiff-employees to submit to random drug and alcohol testing pursuant to DOT regulations. In addition, employees who tested positive were put in the employer’s “On Call” program, which required additional drug and alcohol testing, without advance notice of the tests. (Although the Court’s opinion does not make it clear, it appears that these “On Call” tests were follow-up drug and alcohol tests required under DOT regulations after a violation of a DOT drug and alcohol rule).

Seven current and former employees filed suit alleging disability discrimination. In their third amended complaint, they claimed were regarded as disabled under the ADA, and subjected to excessive drug and alcohol testing as a result. Significantly, the employees did not specify how frequently they were subjected to the On Call testing. They also alleged the tests were unlawful disability-related inquiries under the ADA. The employer moved to dismiss.

The Court held that the employees failed to state a claim because they were not subjected to an adverse employment action. In general, drug and alcohol testing by an employer is “not an adverse action” for purposes of a disability discrimination claim. Moreover, the complaint was devoid of facts alleging that the On Call testing was “so frequent and so invasive” that it was comparable to a demotion, pay cut, or other standard adverse employment action. Rather, it was a “mere inconvenience,” which is not actionable. The Court also rejected the employees’ argument that the embarrassment associated with the testing was sufficient to establish an adverse action. Because the employees failed to assert a viable claim after three attempts, the Court dismissed the claim with prejudice.

With respect to the employees’ unlawful disability-related inquiry claim, the Court concluded the allegations were insufficient to show the claim was timely filed (e.g., within 300 days of the administrative charge). However, the Court allowed six of the seven employees to amend the complaint to try to demonstrate that such allegations were not time-barred. But the Court also expressed skepticism that a drug or alcohol test constitutes a medical examination or inquiry under the ADA, primarily because a drug or alcohol test result does not “tend to reveal a disability.” Moreover, these employees are subject to DOT drug and alcohol testing regulations and the ADA expressly provides that drug and alcohol testing of DOT-regulated employees is permissible.

Illinois Legalizes Recreational Marijuana, Posing Challenges For Employers

The Illinois General Assembly passed the Cannabis Regulation and Tax Act (“the Act”) (HB 1438) on May 31, 2019, legalizing marijuana for recreational purposes. Governor J.B. Pritzker has stated he will sign the bill and it will take effect on January 1, 2020.  The Act will allow anyone over the age of 21 to possess, use, or buy marijuana.  More significantly, marijuana will be considered a “lawful product” for purposes of the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.  For employers, the end of Illinois’ prohibition on recreational use invites a host of practical problems moving forward.

Background

Since 2014, marijuana has been legal in Illinois for medical purposes. With the Act’s recent passage, Illinois became the first state in the nation to legalize legislatively both possession and commercial sales of marijuana for recreational purposes. The Act, aimed at refocusing law enforcement’s attention on violent and property crimes, as well as generating revenue for the state, places cannabis in a category similar to alcohol, subject to a few exceptions.

Notwithstanding this legalization in Illinois, marijuana remains illegal under federal law. Under the Controlled Substances Act, marijuana is still classified as a Schedule I drug, which means that—per federal law—it has a high potential for abuse, it lacks any currently accepted medical use, and it lacks accepted safety for use under medical supervision. However, the federal government has allowed many states to pass and implement both medical marijuana and recreational marijuana laws without opposition.

General Provisions That Are Beneficial For Employers

At first glance, the Act contains a number of provisions that are helpful to employers who wish to maintain drug-free workplaces. Specifically, the Act provides that:

  • Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner. (“On-call” is defined to mean when the employee is scheduled with at least 24 hours’ notice by the employer to be on standby or otherwise responsible for performing work).
  • Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.
  • Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.

Addressing Impairment At Work

The Act permits employers to discipline employees who appear to be impaired by marijuana at work, as long as the employer complies with this provision:

  • An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

The Act does not define “reasonable opportunity” so it is unclear exactly what employers must offer to employees when there is reasonable suspicion of impairment at work.

No Cause of Action Against Employers

The Act also states that it shall not be construed to create or imply a cause of action for any person against an employer for:

  • Actions, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment, based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;
  • Actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; or
  • Injury, loss or liability to a third party if the employer neither knew or had reason to know that the employee was impaired.

Exceptions

The Act does not apply to employers who are regulated by the U.S. Department of Transportation’s drug and alcohol testing regulations, and does not impact an employer’s ability to comply with federal or state laws or cause it to lose a federal or state contract or funding. The Act also does not enhance or diminish protections afforded by the Illinois Medical Marijuana Law or the Opioid Alternative Pilot Program.

Clarification That Marijuana Is Considered A “Lawful Product” Under State Law and Prohibition on Discrimination for Off-Duty, Off-Premises Use

While the above-mentioned provisions of the Act appear beneficial for employers, another part of the Act requires employers who conduct drug testing to take notice. The Act amends the Illinois Right to Privacy in the Workplace Act by defining “lawful products” to mean products that are legal under state law. This means that under the Right to Privacy Act, Illinois employers are prohibited from discriminating against applicants and employees who use “lawful products [i.e., marijuana] off the premises of the employer during nonworking and non-call hours.” (There is a limited exception for certain non-profit organizations). This language has a very significant impact on employers who conduct drug testing.

Impact on Employers’ Drug Testing Programs

The prohibition on discrimination for using “lawful products,” combined with the other provisions referred to above, makes it appear that drug testing for marijuana will no longer be permissible in Illinois unless the employer can demonstrate that the employee was impaired at work or during work time. This means that employers will be limited to “reasonable suspicion” drug testing for marijuana, in accordance with the requirements now set forth in the Act.

Most drug tests are not able to pinpoint exactly when or where an individual used marijuana. For example, a urine drug test generally will detect marijuana used in the last several days, sometimes longer if the individual is a chronic user. Hair tests will detect marijuana use for up to 90 days. Because drug tests generally cannot detect current marijuana impairment, employers will be prohibited by the Illinois Right to Privacy Act from taking adverse actions for positive marijuana drug test results in most situations except for reasonable suspicion. For a pre-employment drug test, the marijuana use always will be off-duty and off-premises, and therefore employers are prohibited from taking adverse actions against applicants who use marijuana. Similarly, for post-accident testing (where there is no individualized suspicion of drug use) and random testing (which never involves individualized suspicion), employers likely cannot take adverse actions against employees who test positive for marijuana if the employer cannot demonstrate impairment at work.

Illinois employers should review their drug-testing policies and practices and consult with counsel to ensure compliance with federal and state laws. Jackson Lewis attorneys are available to assist and to answer any questions about the Act or compliance with current industry requirements.

Occupations Governed by Federal Regulation Remain Guarded Against State Medical Marijuana Non-Discrimination Laws

A growing number of states have passed anti-discrimination laws pertaining to medical marijuana use. While medical marijuana is becoming widely legalized under state law, marijuana and its most identifiable active chemical, THC, remain listed as Schedule I drugs under the federal Controlled Substances Act. Still, the legalized marijuana market, and the science behind the research and development of new products, has come a long way. The marijuana industry now mass produces widely available extracts, oils, and edible products all with varying potency. Unfortunately, state laws pertaining to the use of marijuana and THC-based products are under-developed, vary from state-to-state, often conflict, and are subject to a great deal of misinformation, especially on social media. This rapid market development combined with the lack of clear guidance is fertile ground for unintentional violations of law by employees and employers alike.

Federal Regulations May Prohibit Marijuana Use in States Where Legal

One area where employees and employers should be particularly mindful is with respect to positions that are regulated according to federal law. These positions usually involve federal money, federal contractors, and safety sensitive positions that cross state lines. For example, the Federal Motor Carrier Safety Administration (FMCSA) regulates interstate commercial trucking. The FMCSA and the U.S. Department of Transportation have published guidance stating “a person is not physically qualified to drive a [Commercial Motor Vehicle] if he or she uses any Schedule I controlled substance such as marijuana.” 49 CFR §§ 391.11(b)(4) and 391.41(b)(12)) (emphasis added). In other words, even if an employer is based in a state where medical marijuana is medicinally and recreationally legal under state law, federal regulation may prohibit employees from using marijuana products if they drive commercial motor vehicles or engage in other federally regulated professions.

Occupation Specific Prohibition in Recreationally Legal State

Some occupations outright ban the use of marijuana for particular occupations as a matter of state law, regardless of whether other state law permits medicinal or recreational marijuana use. Recently, a Nevada driver sued his employer after the taxi company discovered that he routinely used marijuana products and terminated his employment. The plaintiff alleged that he was using marijuana to treat a medical condition. Nevada has legalized marijuana for medicinal and recreational purposes. Nevada’s statutes also prohibits a Nevada employer from discriminating against an employee for the lawful use of any product while not on employer time. Notwithstanding these state laws, Nevada’s Legislature also adopted FMCSA drug-use regulations specifically for taxicab motor carriers. That meant that even though marijuana is lawful in Nevada, state law also prohibited any person from operating a taxicab while using marijuana, even off-the-clock.

Employers Across Multiple Industries Are Effected

Some effected industries include transportation, energy, defense, and federal contracting. To make things even more confusing, these prohibitions could also differ from state to state. Also, if an occupation involves the handling, use, transfer, or sale of firearms, those professions may too be off limits to medical marijuana users according to a recent letter from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). Moreover, even if some of the earliest adopting states permit employers to regulate marijuana use in the workplace, these prohibitions naturally implicate federal and state drug testing laws as well.

Employers Should Not Guess

The current legal state of medical and recreational marijuana use in the workplace is in flux. Thus, it is critical to have competent legal counsel versed in the most recent state and national marijuana developments to guide employers. Employers should consult with competent legal counsel in the jurisdictions in which they operate to determine if they are compliant with state and federal law. Jackson Lewis attorneys are available to assist employers with these and other workplace issues.

Nevada Will Ban Pre-Employment Marijuana Testing On January 1, 2020

Beginning on January 1, 2020, it will be illegal to conduct pre-employment drug testing for marijuana in the state of Nevada. Assembly Bill No. 132 was signed into law by the governor on June 5, 2019. This makes Nevada the first state to enact such a law (although New York City became the first city to enact such a law, as we discussed in previous blog posts).

The law provides that it “is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” A “screening test” is defined to mean a test of a person’s blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug. The law does not apply to applicants who apply for positions as firefighters, emergency medical technicans, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.”

The law further provides that if an employer requires an employee to submit to a drug test within the first 30 days of employment, the employee shall have the right to submit to an additional drug test, at his or her own expense, to rebut the results of the initial test. The employer “shall accept and give appropriate consideration to the result of such a screening test.”

The law does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law, and further does not apply to positions funded by a federal grant.

Employers should review and revise their pre-employment drug testing policies prior to January 1, 2020. In addition to removing marijuana from the testing panel, employers should review their job descriptions to determine which positions may be exempt from the law because they “could adversely affect the safety of others.”

New York Offers Tax Credit To Employers Who Hire Recovering Substance Abusers

In an effort to combat the ongoing opioid crisis and substance abuse, New York State’s Budget for Fiscal Year 2020 includes the nation’s first tax incentive program for certified employers who hire people recovering from substance use disorders in full-time or part-time positions. The purpose of the Recovery Tax Credit program is two-fold: to create a recovery-oriented culture in business and local communities, as well as encourage growth by increasing employment opportunities.

Beginning in 2020, certified employers will receive a maximum credit of $2,000 for each eligible individual they hire who has worked a minimum of 500 hours. The State can allocate up to $2 million annually for the program. An eligible individual means an individual with a substance use disorder who is in a state of wellness free from the signs and symptoms of active addiction that has demonstrated to the employer’s satisfaction that he or she has completed a course of treatment for such substance use disorder.

To claim credit for eligible individuals employed during the preceding calendar year, an employer must apply annually to the New York State Office of Alcoholism and Substance Abuse Services by January 15. Applications for the first year of the program are due by January 15, 2021 for eligible individuals employed during the 2020 tax year. In addition to the program eligibility requirements set forth in the legislation, the employer must demonstrate that it provides a recovery supportive environment evidenced by a formal working relationship with a local recovery community organization. If the application is approved, a certificate of tax credit will be issued by March 31.

The Office of Alcoholism and Substance Abuse Services will administer the Recovery Tax Credit program in conjunction with the Department of Taxation and Finance.

Update: New York City’s Ban On Pre-Employment Marijuana Testing Will Take Effect on May 10, 2020

We previously blogged about the law passed by the New York City Council on April 9, 2019 that will prohibit employers from conducting pre-employment drug testing for marijuana. Because the law was not signed or vetoed by Mayor de Blasio within 30 days of passage, it became law on May 10, 2019. The law provides that it will take effect one year later. New York City employers therefore have until May 10, 2020 to get ready to comply with this law, which is the first of its kind in the United States. Click here to read our earlier blog discussing this law in more detail.

 

 

FMCSA Clearinghouse Rules Take Effect On January 6, 2020: Are You Ready?

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration’s Clearinghouse will become operational on January 6, 2020, and FMCSA-regulated employers must be ready to comply with the Clearinghouse requirements on that date. The FMCSA Clearinghouse is an electronic database that will contain information about commercial motor vehicle drivers’ drug and alcohol program violations. Although the Clearinghouse rule actually took effect on January 4, 2017, the implementation date for FMCSA-regulated employers is January 6, 2020.  See 49 CFR Part 382, Subpart G, among others.

The Clearinghouse rule requires FMCSA-regulated employers, Medical Review Officers, Substance Abuse Professionals, consortia/third-party administrators and other service agents to report to the Clearinghouse information related to violations of FMCSA’s drug and alcohol testing regulations by current and prospective employees. In addition:

  • Employers must query the Clearinghouse for current and prospective employees’ drug and alcohol program violations before permitting those employees to operate a commercial motor vehicle on public roads.
  • Employers are required to query the Clearinghouse annually for each driver they currently employ.
  • State driver licensing agencies will be required to query the Clearinghouse whenever a CDL (commercial driver’s license) is issued, renewed, transferred or upgraded.

Here are the important dates that FMCSA-regulated employers must be aware of, and steps to take to prepare for compliance:

Fall 2019:

Register with the Clearinghouse. Employers (and their service agents) should log on to the FMCSA Clearinghouse to register with the Clearinghouse and become familiar with the site. See: https://clearinghouse.fmcsa.dot.gov/. Clearinghouse registration is valid for five years, unless cancelled or revoked.

Revise Drug and Alcohol Testing Policy. In addition, FMCSA regulations require employers to add language to their FMCSA drug and alcohol testing policies to notify drivers and driver-applicants that the following information will be reported to the Clearinghouse:

  • A verified positive, adulterated, or substituted drug test result;
  • An alcohol confirmation test with a concentration of 0.04 or higher;
  • A refusal to submit to a drug or alcohol test;
  • An employer’s report of actual knowledge, as defined at 49 CFR § 382.107;
  • On duty alcohol use pursuant to 49 CFR § 382.205;
  • Pre-duty alcohol use pursuant to 49 CFR § 382.207;
  • Alcohol use following an accident pursuant to 49 CFR § 382.209;
  • Drug use pursuant to 49 CFR § 382.213;
  • A SAP’s report of the successful completion of the return-to-duty process;
  • A negative return-to-duty test; and,
  • An employer’s report of completion of follow-up testing.

January 6, 2020:

Queries of New Hires/Transfers: Employers must query the Clearinghouse before allowing a newly-hired commercial motor vehicle driver (or current employee who transfers into such a position) to begin operating a commercial motor vehicle. Drivers must sign a consent form allowing the employer to do so.

Annual Queries of Current Employees. Employers must query the Clearinghouse at least once per year for each driver they currently employ. Drivers must sign a consent form allowing the employer to do so. The employer must maintain records of all queries and information obtained in response to the query, for a period of three years. (As of January 6, 2023, an employer who maintains a valid registration fulfills this requirement).

Reporting of Drug and Alcohol Program Violations. Employers must report drivers’ drug and alcohol program violations (listed in the bullet points above) to the Clearinghouse within three business days after the employer learns of the information.

Employers must prohibit drivers who have violated FMCSA’s drug and alcohol program regulations from performing safety-sensitive duties unless the driver complies with the return-to-duty process set forth at 49 CFR Part 40, Subpart O (requiring SAP evaluation, possible treatment, return-to-duty testing and follow-up testing).

January 6, 2023:

Safety Performance History Investigations. In addition to the items listed above, employers also will be required to conduct the drug and alcohol testing portion of the safety performance history investigation of driver-applicants through the Clearinghouse. Employers still will be required to obtain the other information required by the safety performance history investigation regulations (e.g., accident history) directly from the driver-applicants’ previous DOT-regulated employers, because that information is not reported to the Clearinghouse.

Employers who do not comply with the FMCSA Clearinghouse requirements are subject to the civil and/or criminal penalties set forth at 49 U.S.C. 521(b)(2)(C) (i.e., civil penalties not to exceed $2,500 for each offense).

FMCSA-regulated employers should review and revise their drug and alcohol testing policies and become familiar with the Clearinghouse requirements before the implementation date.

New Mexico Amends Medical Marijuana Law To Provide Employment Protections

The New Mexico medical marijuana law has been amended to provide employment protections to employees and applicants. The amendments were signed into law by the governor on April 4, 2019.

The law now provides that “unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, it is unlawful to take an adverse employment action against an applicant or an employee based on conduct allowed under [the medical marijuana law].” The law also expanded the definition of a “debilitating medical condition” for which individuals may use medical marijuana.

Employers still are permitted, however, to take adverse employment actions against an employee for “the use of, or being impaired by, medical cannabis on the premises of the place of employment or during the hours of employment.” The law does not define what “impaired by” means, and does not address positive drug test results.  In addition, medical marijuana users are not protected from criminal prosecution or civil penalty for possession or use of marijuana in the workplace.

These new employment protections do not apply to employees deemed by the employer to work in a safety-sensitive position. “Safety-sensitive position” is defined to mean a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.

New Mexico employers should review their drug testing policies to determine whether any revisions are warranted and should train the appropriate managers to respond to employment issues involving medical marijuana, such as requests for accommodations and positive drug test results.

New York City Will Ban Pre-Employment Marijuana Testing in 2020

The New York City Council passed a law on April 9, 2019 that will prohibit employers from conducting pre-employment drug testing for marijuana. The law is expected to be signed by the mayor and will take effect one year later. This law is the first of its kind in the United States.

The new law will amend the New York City Human Rights Law and provides that: “Except as otherwise provided by law, it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” Tetrahydrocannabinols, or THC, is the main psychoactive component of marijuana.

The law will not apply to applicants for certain types of jobs, including:

  • Police officers or peace officers, or other jobs with law enforcement or investigative functions at the department of investigation;
  • Positions requiring compliance with Section 3321 of the New York City Building Code or Section 220-h of the Labor Law (pertaining to certain types of construction and maintenance jobs);
  • Any position requiring a commercial driver’s license;
  • Any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in Social Services Law Section 488(15) (certain individuals with physical and cognitive disabilities);
  • Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

There are additional exclusions. The law specifically does not apply drug testing required by:

  • Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;
  • Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

Once the law is signed by the mayor, additional rules and regulations are expected to be implemented. Given that the law will not take effect for one year, New York City employers will have time to revise their drug testing policies, employment applications and other pertinent documents.

DOT-Regulated Truck Driver’s Claims Dismissed Because He Could Not Prove “Shy Bladder” Condition

An employer lawfully terminated a commercial motor vehicle driver after the driver was unable to provide a sufficient amount of urine during a random drug test and could not prove that he had a medical condition that would have prevented him from providing the specimen. Beller v. Wal-Mart Transp., LLC, No. 17-cv-530, 2019 U.S. Dist. LEXIS 52887 (S.D. Ohio Mar. 28, 2019).

Plaintiff was a commercial motor vehicle driver subject to the U.S. Department of Transportation’s drug and alcohol testing regulations. In May 2016 he was selected for a random drug test. Plaintiff was unable to provide a sufficient amount of urine for the test within the time period specified by DOT regulations. The clinic notified the employer that Plaintiff was unable to provide a urine specimen on demand, and Plaintiff was suspended. The employer consulted with the Medical Review Officer (“MRO”), and Plaintiff then was directed “to obtain within five days, an evaluation from a licensed physician, acceptable to the MRO, who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen.” 49 C.F.R. § 40.193(c).

Plaintiff was examined by a physician who was board certified in family medicine and had experience evaluating shy bladder issues. The physician was required to determine whether there was “an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of breath or urine specimen” as outlined in the DOT regulations. 49 C.F.R. § 40.193(d)(1). During the evaluation, Plaintiff did not mention that he had any trouble urinating and he had no history of prostate problems. The physician concluded that Plaintiff did not have a medical condition preventing him from providing a sufficient urine specimen. The MRO reviewed the results and agreed with the physician’s findings. Pursuant to DOT regulations and the employer’s policy, Plaintiff’s specimen result was marked as a “Refusal to [T]est”, and his employment was terminated.

After his termination, Plaintiff made two subsequent attempts to submit documentation from his own primary care physician and a urologist to show that he did in fact suffer from a medical condition, prostatic hyperplasia disability, which prevented him from providing a sufficient amount of urine on demand. The employer refused to accept the subsequent findings.

Plaintiff filed a lawsuit alleging, among other claims, disability discrimination, including failure to accommodate his disability, in violation of the Americans with Disabilities Act.

The court dismissed Plaintiff’s claims. Among other things, Plaintiff argued that the employer failed to accommodate his recently-diagnosed benign prostatic hyperplasia disability when the employer failed to consider his urologist’s letter of proof of a medical condition precluding his ability to provide a urine specimen on demand. But Plaintiff failed to prove that the employer was aware or should have been aware of his disability prior to his termination. Indeed, the employer received the urologist’s letter well over a week after Plaintiff was terminated; and the employer had no obligation to participate in the interactive process once Plaintiff was terminated. Accordingly, Plaintiff’s failure to accommodate claim failed as a matter of law.

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