Federal Appeals Court Holds Test For Illegal Drugs Is Not An Impermissible Medical Examination, Even If Test May Reveal Lawful Drug Use
A federal appeals court upheld the termination of an employee who tested positive for amphetamines on a random drug test – despite his claim that the result was due to over-the-counter drug use – and rejected his arguments that the random drug test was an impermissible medical examination and that the Medical Review Officer’s questions constituted an impermissible disability-related inquiry. Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019).
Phillips 66 Co., the employer, conducted a random drug test on its employee, Richard Turner. Three days later, Mr. Turner was involved in a workplace accident and submitted to a post-accident drug test. On the day of the post-accident test, the employer learned that Mr. Turner had tested positive for amphetamines on the random drug test. Mr. Turner advised the Medical Review Officer (MRO) that the positive random drug test was due to his use of over-the-counter Sudafed, which his treating physician confirmed in writing. Phillips 66 terminated Mr. Turner’s employment under its policy providing that if an employee tests positive for drugs, his or her employment will be terminated. Mr. Turner appealed the termination decision pursuant to the Company’s policy. He submitted to a hair test at an independent laboratory and that test was negative. In addition, the results of his post-accident test also were negative. A confirmatory re-test of Mr. Turner’s original random urine specimen, however, confirmed that that test result was positive for amphetamines.
Phillips 66 denied Mr. Turner’s appeal and upheld the termination. Thereafter, Mr. Turner filed a discrimination charge with the Equal Employment Opportunity Commission, alleging disability discrimination in violation of the Americans With Disabilities Act (ADA). The EEOC dismissed the charge. Mr. Turner then filed a complaint alleging that: (1) he was subjected to an impermissible medical examination and disability-related inquiry; (2) he was terminated due to a disability (allergies); (3) he was “regarded as” disabled; (4) the drug testing violated the Oklahoma drug testing law. The district court granted summary judgment to Phillips 66 on each of Mr. Turner’s ADA claims. Mr. Turner appealed.
The Tenth Circuit Court of Appeals affirmed the district court’s grant of summary judgment to Phillips 66.
First, the court rejected Mr. Turner’s argument that his drug test and discussion with the MRO about his medications violated the ADA. Mr. Turner argued that, because he tested positive for amphetamines due to taking an over-the-counter medication, the employer’s drug test “was not for illegal use of drugs as permitted by [the ADA], but went beyond that to legal and appropriate use.” Mr. Turner further argued that the drug test was a medical examination that required Phillips 66 to show that it was “job-related and consistent with business necessity” under the ADA. The court disagreed, holding that a drug test does not become a medical examination simply because the drug test revealed the potential use of legal drugs. The court similarly rejected Mr. Turner’s argument that the MRO’s discussion with him about his use of medications violated the ADA as being an impermissible disability-related inquiry.
Second, the court rejected Mr. Turner’s argument that the district court erred in granting summary judgment to Phillips 66 on his “traditional” and “regarded as” ADA disability discrimination claims. The court affirmed the district court’s determination that Phillips 66 had set forth a legitimate, non-discriminatory reason for Mr. Turner’s termination—that is, his positive drug test—and that Mr. Turner had failed to show pretext. While Mr. Turner attempted to argue that he did not need to show pretext as his evidence was direct, the court rejected that argument, finding that it did not meet the requirement that direct evidence must show, without inference, that the employment action was taken as a result of the employee’s disability. Because Mr. Turner failed to articulate or even argue pretext, the court held that his disability discrimination claims under the ADA failed.