Pre-offer drug tests to determine the use of illegal drugs did not violate the Americans with Disabilities Act’s prohibition on pre-offer medical inquiries, a federal court in Pennsylvania held on September 15, 2015. EEOC v. Grane Healthcare Co. et ano, CV No. 3:10-250 (W.D. Pa. Sept. 15, 2015).

The Court previously held, for purposes of deciding summary judgment motions, that the pre-offer drug tests did, in fact, qualify as impermissible medical examinations that violated the ADA because each urine sample was tested for both medical reasons and for use of illicit drugs.  EEOC v. Grane Healthcare Co. et ano., CV No. 3:10-250 (W.D. Pa. Mar. 6, 2014). (We blogged about that earlier decision here).   After a bench trial, however, the Court awarded judgment to Defendants, holding that the evidence showed that the drugs tests “were proper drug screens” and did not constitute medical examinations under the ADA.

The Court stated that in order for a drug test to be considered a medical examination under the ADA, a claimant must show that (1) the drug test in question was not administered to determine the illegal use of drugs, and (2) that the drug test did not, in fact, return a positive result for the illegal use of drugs. In this case, Defendants presented credible testimony at trial to satisfy the Court that its only intent in performing pre-offer drug testing was to determine whether the applicants were using illicit drugs. A defense witness testified at trial that when an applicant tested positive for a controlled substance, she would cross-check the positive result for controlled substances with the list of medications used by the applicant (provided by the applicant prior to the test). It was only at this point that the Defendants learned whether an applicant was taking a lawfully prescribed medication. The drug test itself did not show whether an applicant used a prescription medication. The Court observed that the review of an applicant’s medication list was intended only to make employment decisions based on illegal drug use, rather than merely a positive test result. The Court held that this procedure is acceptable under the ADA and that under this protocol, the pre-offer drug test was not a medical examination that violated the ADA.

The EEOC offered no evidence to contradict Defendants’ proffered reason for conducting the pre-offer drug tests, namely, to make employment decisions based on illegal drug use. Additionally, as to four applicants who tested positive and were not hired, the EEOC failed to establish that the drug tests were incorrect, or that the applicants had valid prescriptions for lawful medications.

It is possible that the Court could have ruled differently if the applicants had presented valid prescriptions for lawful medications that revealed medical conditions.