Human Resources News & Insights

ADA accommodation? But we haven’t even hired her yet

This is a federal employment law pill some employers have a tough time swallowing.

The ADA covers more than just current employees. Its protections also extend to probationary employees, new hires and job applicants — yes, even applicants.

The case of Laura Jones is a prime example of just how expansive the ADA’s worker protections are.

Jones applied for an evening sales associate job at a Walmart store in Cockeysville, MD. She was offered a job contingent upon her passing a urinalysis screening for illegal drugs.

The problem was Jones couldn’t produce a urine sample because she has end-stage renal disease. So she requested that she be allowed to take an alternative drug test — like a blood test.

But Walmart refused to order an alternative drug test and denied Jones employment for failing to complete the urinalysis test within 24 hours.

Jones then took her case to the EEOC, which sued on her behalf, claiming Walmart discriminated against her on the basis of her disability.

The EEOC claimed that Walmart failed to explore reasonable accommodations — like a blood test — that would’ve allowed Jones to complete the drug screening portion of the hiring process.

Failing to explore whether or not providing such accommodations to help disabled individuals perform essential duties amounts to disability discrimination under the ADA. The EEOC has been pushing this message for a while now.

EEOC Regional Attorney Debra M. Lawrence had this to say in an EEOC release about Jones’ case:

 This is the fourth EEOC lawsuit alleging the employer failed to provide a reasonable accommodation and refused to hire a qualified applicant when the solution-to provide a blood drug test during the drug screening process-was simple. We are pleased that Wal-Mart East is providing targeted training and disseminating a memorandum on its drug screen policy, and hope that this settlement encourages all employers to review their hiring and post-offer drug screening procedures to ensure that qualified applicants are provided with needed reasonable accommodations.

As you can guess from that statement, Walmart decided to settle the case. As part of the settlement, it’s handing over $72,500 in monetary relief to Jones and revising its drug screening form to inform applicants that alternative drug screens will be available to applicants whose physical conditions prevent them from producing urine samples.

The fact that this case didn’t make it to trial is inconsequential. The lawsuit itself shows that the EEOC will apply the ADA’s protections to individuals regardless of their employment status.

EEOC: Probationary employee discriminated against

Another resent EEOC lawsuit that HR Morning broke down a few weeks ago proves the point even further.

In that case, the agency sued pipe fittings manufacturer EZEFLOW on behalf of Adam Brant, a former U.S. Marine who began suffering from post-traumatic stress disorder (PTSD) during his 90-day probationary period with the company.

Due to his PTSD, Brant’s doctor recommended he take six weeks off from work. Brant then requested unpaid medical leave, but EZEFLOW denied his request. It said he wasn’t yet qualified for medical leave because he was still a probationary employee.

The EEOC’s comments on Brant’s case:

The ADA also requires employers to provide a reasonable accommodation, including granting unpaid medical leave, to an employee with a disability unless the company can show it would be an undue hardship to do so.

Just like Walmart, EZEFLOW decided to avoid further legal wrestling and settled the suit for $65,000.

Bottom line: The best way to stay out of a costly legal predicament is to engage in the interactive process to explore the possibility of providing reasonable accommodations to applicants, new hires, probationary employees and current staffers when a disability interferes with their abilities to perform an essential function of their jobs or the hiring process.

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