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.