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Failure to Hire DOT Driver After Positive Drug Test Result Leads To ADA Claim

A South Carolina company that hauls gasoline, diesel fuel and ethanol throughout the country will face an Americans with Disabilities Act suit brought by a rejected DOT driver applicant with a sleep disorder for which he was prescribed an amphetamine (Dexedrine), the U.S. Court of Appeals in Richmond has decided, reversing a lower’s court’s dismissal of John Lisotto’s lawsuit.  Lisotto v. New Prime, Inc.,  2016 U.S. App. LEXIS 8011 (4th Cir., No. 15-1273, decided May 3, 2016) (not officially reported).

A district court concluded that Lisotto had failed to exhaust his administrative remedies before the Federal Motor Carrier Safety Administration and threw out his discrimination complaint.  However, the appeals court found the lower court had mischaracterized the issue as a conflict between physicians  over Lisotto’s physical qualifications to be a driver, for which FMCSA regulations provide administrative recourse (49 C.F.R. § 391.47 authorizes  the FMCSA to resolve “conflicts of medical evaluation” where the physician for the driver and the physician for the motor carrier disagree concerning a driver’s physical qualifications.)

That was not the case, the Fourth Circuit concluded.  There was no such disagreement.  As long as Lisotto took proper medication for his narcolepsy, he appeared to be qualified, according to the doctors.  Rather, the facts alleged here focused on the refusal to hire Lisotto based on his positive pre-employment drug test result and the company’s medical review officer’s actions in regard to that test result.  Specifically, the medical review officer allegedly did not communicate with Lisotto’s physician to determine whether there was a legitimate medical reason to explain the positive drug test result.  The Fourth Circuit concluded Lisotto’s complaint could “only be read to lodge an ADA claim” against the company based on alleged conduct leading up to its failure to hire him, and by its failure to hire him, even though he had provided documentation that his narcolepsy had been controlled by medications.  Lisotto’s complaint also alleged the company violated the ADA:  by failing to hire him because he tested positive for amphetamines on a FMCSA-required pre-employment drug test; by failing to accept his doctor’s explanation for his positive drug test result; by failing to proceed with the hiring process in light of information provided by his doctor and insisting that he change medications; by reporting a positive drug test result; and, by failing to correct the false drug test report made to FMCSA, DOT or others. The Fourth Circuit remanded the case for further proceedings.

A prospective employer’s alleged failure to address an applicant’s lawfully prescribed medications that control his medical condition, consistent with DOT and FMCSA regulations, may result in ADA claims. Under DOT regulations, carriers may be held responsible for the regulatory compliance by their service providers, such as MROs, even though they are independent contractors.

Jackson Lewis P.C. © 2019

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About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm
Principal

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

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