Does being unable to pee on cue qualify as a disability?
That question came up recently in an informal opinion letter from Peggy Mastroianni, a lawyer with the EEOC. And, apparently, the answer could be “yes.”
Mastroianni was responding to an inquiry from an employer who, we assume, had run into a problem in its regular drug testing regimen. Apparently, an employee claimed he or she couldn’t provide a urine sample for testing because of “bashful bladder syndrome.”
There is, indeed, a recognized condition — officially dubbed paruresis — in which an individual can’t urinate in public bathrooms or in close proximity to other people. It’s “generally considered to be an anxiety disorder, and typically is treated with congnitive-behavioral therapy,” according to the EEOC opinion letter.
So it appears that drug users now have a convenient way to avoid company drug tests — just say you’re suffering from paruresis, and you’re home free.
At least that’s what we think Mastroianni’s letter indicates. Here’s her final word of advice to the employer:
As was true prior to the ADAAA, a person with paruresis is required to show individually that he or she meets the definition of “disability.” The ADAAA and its implementing regulations make this showing much easier, by including bladder and brain functions as major life activities, lowering the standard for establishing that an impairment “substantially limits” a major life activity, and focusing the determination of whether an individual is “regarded as” having a disability on how the individual has been treated because of an impairment, rather than on what the employer may have believed about impairment. No negative inference should be drawn from the fact that paruresis is not specifically mentioned in the EEOC’s regulations implementing the ADAAA.
What’s an employer to do?
The case of the balky bladder is just the latest chapter in the story of the ADA Amendments Act, which so broadened the official definition of disability that it’s pretty likely everybody in your company suffers from some kind of condition that could require accommodation.
What are your options should you run into the “shy bladder syndrome”?
Jonathan Segal of the law firm Duane Morris offered three suggestions on his blog.
First, employers can ask employees to provide medical certification that confirms they’re suffering from paruresis. That, of course, could cost both money and time — time that could allow a drug user to clean out his system and avoid a positive test result.
Second, Segal says, the company could set up a system wherein any individual who couldn’t provide a urine specimen would have to provide a hair sample instead.
Seems like a good idea, but then there is a medical condition called Alopecia universalis, which causes the complete loss of hair all over the body. Wonder what a reasonable accommodation for that condition might be.
Segal’s got one more suggestion for dealing with the paruresis issue, and it’s our favorite:
Offer assertiveness training so that every bladder can realize its full potential.
Seems like an appropriate approach in the wacky world of the new ADA.