Employers must do more than pay lip service to the Americans with Disabilities Act (ADA): They must exhaust administrative remedies before taking adverse action. The U.S. Court of Appeals for the Fourth Circuit recently affirmed this principle in Lisotto v. New Prime, Inc.

APPLICANT FAILS TEST

A prospective employee applied for a commercial truck driver position and was told that, as part of the hiring process, he would have to pass a physical examination and drug test. In anticipation of the examination and test, the applicant obtained a letter from his physician stating that he took an amphetamine drug to manage narcolepsy, a sleeping disorder, and that he was able to operate a commercial motor vehicle. The applicant told the employer’s medical examiner that he was taking an amphetamine and provided him with his physician’s note.

But the medical examiner stated that the employer only approved another medication for treating narcolepsy and that the applicant needed to take that drug for six weeks before beginning employment. A few days later, the employer’s medical review officer told the applicant that his physician needed to contact the officer within five days about his condition and medication. Otherwise, the officer would report a positive drug test to the Department of Transportation (DOT).

The applicant’s physician attempted to contact the employer’s medical review officer to no avail. He also changed the applicant’s prescription to the medication specified by the employer.

After six weeks of being on the approved medication, the applicant attempted to contact the employer. However, a personnel office employee told the applicant that he couldn’t work for the employer because he’d tested positive for amphetamines.

The applicant appealed to the medical review officer, but was told in a letter that narcolepsy was a safety concern. Thereafter, the applicant found out that he did not have narcolepsy and he forwarded the results to the medical review officer. He received no reply. The applicant filed a claim against the employer alleging ADA violations.

The employer argued that the applicant should have exhausted his administrative remedies with the Federal Motor Carrier Safety Administration (FMCSA). This government agency resolves disagreements between company physicians and employee physicians over medical examinations. The employer moved to dismiss the complaint and the trial court agreed.

NO DISAGREEMENT EXISTS

The applicant appealed, arguing that there was no “disagreement.” He asserted that the employer had discriminated against him when it failed to hire him based on an erroneous verified positive drug test. He also claimed that the employer’s medical review officer had failed to change the verified positive drug test result to a negative one after the applicant produced a legitimate medical explanation for the positive result.

Agreeing with the applicant, the court vacated and remanded. It held that the trial court had mischaracterized the issue as a conflict between physicians over the applicant’s physical qualifications to be a driver, for which the FMCSA regulations provide administrative recourse. However, there was no such disagreement between the physicians.

The employer’s medical examiner had said that, if the applicant took the approved narcolepsy medication, he could work for the employer. The court ruled that the issue in the case was the employer’s refusal to hire the applicant based on his positive drug test result and the medical review officer’s actions regarding it.

CHECK YOUR POLICIES

If your organization administers drug tests to job applicants and employees, be sure you have proper review policies in place. Positive drug test results and reasons for those results should be reviewed before denying employment or taking adverse actions against individuals.