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Drug tests, marijuana use, and the EEOC

by Burton J. Fishman

Employers are beginning to comprehend how the widespread availability of medical marijuana will affect the workplace. Newly garbed with medical justification, more workers are claiming a “right” to use marijuana at work. Employers, confronted with a note from the ever-more- aptly-named “Dr. Feelgood” authorizing employees’ use of the drug, are often stymied. A number of recent cases are certain to add to the problems. 

Is prescription drug use protected?
First, it is important to understand the law and its limits. No one has a right to come to work in an impaired condition, whether the impairment is the result of alcohol, drugs, or prescribed medications. Marijuana is not the only drug with psychotropic effects or impairing side effects. Many drugs prescribed for treatment of a number of psychological and physical ailments have side effects that make performing many work tasks difficult, impossible, or ill-advised.

In the past, most workers who used such medications informed their employer about the potential side effects or alerted the company if an episode occurred. In still other cases, employer-administered drug tests, either random or incident-related, uncovered the drug use. And here is where a new set of problems is occurring.

Drug testing dilemmas
The Equal Employment Opportunity Commission (EEOC) is on a mini crusade to defend job applicants and employees who suffer from paruresis (sometimes called “shy bladder syndrome”) or other ailments with similar symptoms, perhaps as part of its broader effort to challenge barriers to hiring. In two widely publicized cases, the agency sued Walmart and Kmart for refusing to accommodate applicants who could not provide a urine sample for a drug test. Both companies settled the cases for significant amounts and agreed to revise their drug-testing policies. In each case, expensive alternatives to urine testing, including blood testing, were proposed. Equal Employment Opportunity Commission v. Kmart Corp. et al., 8:13-cv-02576 (E. Md., 2015), and Equal Employment Opportunity Commission v. Wal-Mart Stores East, LP, 1:14-cv-00862 (E. Md., 2015).

An even more widely noted case filed under the Americans with Disabilities Act (ADA) yielded a jaw-dropping $2.6 million verdict for a pharmacist with trypanophobia, a morbid fear of needles. As a result of his fear, the pharmacist could not give injections—specifically, flu shots, which the pharmacy offered to its customers. He was terminated, he sued, and the jury gave him the lottery-sized prize. Stevens v. Rite Aid Corp. et al., 6:13-cv-00783 (N.D. NY, 2015).

Whether trypanophobia is a disability, whether giving flu shots is an essential part of a Rite Aid pharmacist’s job, and whether an interactive dialogue occurred are all issues to be worked out on appeal. For our purposes, the issue is what if the pharmacist refused a blood test—and couldn’t produce a urine sample? In our line of work, we have learned that little is too far-fetched to occur.

The unlikeliness of such a dilemma would make this a subject not worth our time except for the expanding prevalence of drug use in the workplace, especially marijuana. With so many more workers using pot, there is an increased need for drug testing, simply to ensure worker safety with no moral overlay at all. Are employers going to be put to the significant additional expense of using blood tests to screen for drug use? And what if an employee suffers from trypanophobia? Will employers be forced to resort to more exotic (and expensive) tests of hair and skin?

Where does it end?
We are experiencing the impact of the “law” of unforeseen consequences. As the EEOC energizes its efforts to reduce barriers to hiring, the main target may be criminal background checks, but trypanophobia and paruresis get caught up in the mix because the ADA has no limits. At the same time, societal mores on pot have shifted, and the use of a psychotropic drug is becoming as common as drinking a latte.

How this expanded use of pot will develop is unforeseen, and nothing’s a problem until it’s a problem: The barely high bookkeeper misses an entry, or the forklift driver with a prescription for medical marijuana backs into the loading ramp—no one is hurt this time, but what about next time? In the meantime, drug testing has become complicated, expensive, and legally fraught, making such occurrences more frequent.

Burton J. Fishman is of counsel to Washington, D.C.’s, Fortney & Scott, LLC, and is recognized as one of the nation’s leading authorities on workplace law. A former deputy solicitor of the U.S. Department of Labor, his experience extends to the full spectrum of employment and labor matters.