The dramatic rise in prescription drug use in the United States over the past two decades, with its attendant risk of a myriad of side effects, has left employers struggling with ways to balance their interests in productivity and safety with potential liability for violating their employees' legal rights under the Americans with Disabilities Act. Under the ADA, an employer may claim a "direct threat" defense if it fired or refused to hire an employee based on a threat the employer determined the employee posed to safety and health in the workplace. In a recent case, several employees brought an ADA suit against their employer after they were fired from their safety-sensitive jobs for the mere legal use of certain prescription drugs their employer had decided posed a safety risk in its workplace. The district court denied the employer's motion for summary judgment on the ground that a reasonable juror could find that the employer's drug policy was broader than necessary because the employer automatically excluded all employees who took certain drugs from working at the company, without any regard for individualized circumstances as required by the ADA. However, the Sixth Circuit reversed the decision on the ground that the employees were not disabled and thus were not protected under the ADA. In light of the ADA Amendments Act of 2008 and other developments since the passage of the ADA in 1990 that call for expanded protection under the Act, this Note establishes the contours of the highly individualized inquiry employers and courts must perform in addressing the problem of prescription drug use in the workplace.
A little over two decades ago, the Supreme Court first ruled that employers may test employees for illegal drug use in the workplace, subject to certain requirements.1 A year after that decision, Congress passed the Americans with Disabilities Act2 ("ADA" or "the Act"), which expanded the scope of civil rights protections for individuals with disabilities3 and set parameters for the testing of alcohol and illegal drug use in the workplace.4 Since then, a dramatic rise in prescription drug use among Americans for "pain, anxiety and other maladies"5 has resulted in the presence of a significant, and continually growing, number of employees in the American workplace with powerful, albeit legal, drugs in their systems.6 With prescription drug testing, prompted by concern over the risk of a myriad of side effects such drugs pose, employers have struggled to balance their interests in productivity and safety7 with potential liability for violating their employees' legal rights. These concerns are especially marked in industries that involve high risks of injury, such as manufacturing, transportation, construction, healthcare, and law enforcement.8
In 2007, Dura Automotive Systems fired employees who tested positive for certain prescription drugs, including the painkiller Oxycodone, one of the most prescribed drugs in the United States,9 even though the employees were taking them pursuant to a prescription and under a doctor's supervision.10 The company acted on a presumption that certain prescription drugs create a safety risk in the workplace.11 The employees had worked on the manufacturing floor assembling glass windows for cars, and the company claimed that their jobs were safety-sensitive.12 Under the company's drug-testing program, all employees were tested for twelve drugs, including legally prescribed drugs such as Xanax and Oxycodone, which the company deemed unsafe because their labels included warnings against driving or operating machinery.13 Several of the fired employees sued Dura for discrimination under the ADA.14 One plaintiff, Sue Bates, who suffered from depression, bipolar disorder, back pain, and ADHD, lost her job of many years after testing positive for Oxycodone, even though she had never had a safety violation while on her prescribed medication.15 The company had changed its policy during her employment to test for certain prescription drugs as well as illegal ones, such that her medication, among many others, was suddenly and automatically considered unsafe. …