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6th Circuit Holds an Individual Must be Disabled to Contest Employer's Drug Testing Policy

Posted by attorney Randy Enochs

A section of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ? 12112(b)(6), reads: As used in subsection (a) of this section, the term "discriminate against a qualified individual on the basis of disability" includes-- using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; Seven former employees at Dura Automotive Systems in Lawrenceburg, Tennessee who tested positive for one of twelve prohibited substances who had a legal prescription for a drug containing that substance, sued claiming that Dura's drug testing violates the Americans with Disabilities Act. The district court held that individuals do not need to be disabled to assert claims under section 12112(b)(6). An interlocutory appeal was initiated on the issue of whether an individual must be disabled to pursue a claim under section 12112(b)(6) of the Act. In finding that an individual must be disabled to pursue a claim under section 12112(b)(6) of the ADA, the court stated: Although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to "qualified individual[s] with disabilit[ies]," and not, as discussed below, a broader class of individuals such as "employees." See id. ? 12112(a), (b)(6). While recognizing that other parts of the ADA apply to non-disabled individuals, the Court hammered on the plain meaning and literal wording of the statute and notes that the primary purpose of the Act is to protect disabled individuals. Attorney Jon Hyman on the Ohio Employer's Law Blog has interesting commentary on this case: This case may end up being much ado about nothing. Because terminations occurred before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of "disability." As I have previously discussed, the ADA Amendments Act expands the definition of "disability" so broadly that virtually every employee with a medical condition could be considered "disabled." Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were "disabled." Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity--an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing. The case is Bates v. Dura Automotive Systems, Inc., No. 09-6351 (6th Cir. 11/3/10).

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