The EEOC has taken to suing employers who screen out disabled workers through medical inquiries or exams. Since September 2017, it has filed seven such suits. In one of those cases, EEOC v. M.G. Oil Co., No. 4:16-CV-04131 (D.S.D. Jan. 25, 2018), the EEOC filed an action against M.G. Oil, on behalf of Kim Mullaney, after Happy Jack’s Casino (owned by M.G. Oil) rescinded her job offer.
In the post-offer stage, Ms. Mullaney tested positively for hydrocodone. Ms. Mullaney explained that she took the hydrocodone for neck and back pain, and confirmed her disability and the proper possession and use of the prescription. Happy Jack’s rescinded the offer without conducting an individualized medical review of her situation.
In attempting to defend itself, M.G. Oil contends that the third party drug testing company it used (TestPoint Paramedical LLC) was not supposed to tell M.G. Oil a worker failed a test if only lawful prescription medication was found in the individual’s system, and further, that it did not comply with M.G. Oil’s policy to conduct further investigation on positive tests, which would include checking for a valid prescription. TestPoint had told M.G. Oil that Ms. Mullaney had tested positively without having a Medical Review Officer (MRO) confirm that the positive result was not caused by her lawful hydrocodone use.
While it seems like a plausible argument for the employer to make (hey, they messed up and gave us bad information despite us having the proper policy in place and asking them to follow the rules), the trial court found that Title I of the Americans with Disabilities Act does not permit employers being sued for disability discrimination to file third-party claims for indemnity and/or contribution.
The trial court relied upon a 1981 U.S. Supreme Court decision, Northwest Airlines, Inc., v. Transport Workers Union of America, 451 U.S. 77 (1981), that held Title VII does not permit employers to seek indemnification for discrimination claims from third parties, and recognized that the enforcement provisions between the two statutes (Title VII and Title I of the ADA) are identical and required the same result. M.G. Oil sought an immediate appeal to the Eighth Circuit, which was also denied.
Employers want to be sure any third-party drug testing facilities are complying with the law, complying with its own review process, have an MRO verify positive test results, and confirm that any positive test results are in fact, truly positive.