Drug Test Reveals Opioids: Should Company Rescind Job Offer?

Picture this: You’ve gone through the interview process and finally found the perfect candidate for a safety-sensitive position – or so you thought. But then his pre-employment drug test revealed the use of opioids. What’s your best move?

If you’re like many HR pros, you might’ve decided to rescind the job offer. That’s what an industrial manufacturing company in Texas did.

But then it got hit with an EEOC lawsuit. Here’s what happened.

Experienced welder applies for job

In 2019, Alexander Dare applied for a welding position at a manufacturing and service company that builds oilfield service equipment for energy and industrial companies. Dare had experience as a welder and interviewed well.

The company made an offer and asked Dare to submit to a mandatory pre-employment drug test, which a third party administered.

Applicant discloses use of opioids

At the drug testing facility, Dare disclosed that he had prescriptions for both methadone and Xanax. He explained that he suffers from opioid use disorder and has a prescription for methadone as part of a medically assisted therapy (MAT) program.

He also explained that he takes Xanax to treat his anxiety disorder.

Did he pass – or fail?

The doctor who reviewed Dare’s drug screen and prescriptions marked Dare’s drug screen as “negative: has prescriptions” but he included the following note: “His drug screen is negative but both the methadone and especially the high dose Xanax are SEDATING so he cannot work in a safety-sensitive position or operate equipment.”

Based on the doctor’s note expressing concerns about the use of opioids and Xanax, the employer rescinded the job offer.

EEOC steps in

Dare filed a charge of discrimination with the EEOC.

After an investigation, the EEOC determined it had reasonable cause to believe the company violated the Americans with Disabilities Act (ADA). However, the parties were unable to resolve the matter through the EEOC’s conciliation process.

As a result, the EEOC filed a disability discrimination lawsuit on Dare’s behalf, alleging the employer withdrew the offer of employment based on his use of opioids without engaging in the interactive process with Dare to determine whether he could perform the essential job functions with or without a reasonable accommodation.

In the EEOC’s view, the alleged conduct violated the ADA, which prohibits discrimination in hiring, firing, and other employment actions based on mental and physical disabilities.

Relevant in this case, the ADA also may provide protections to employees or applicants who are using opioids, are addicted to opioids, or were addicted to opioids in the past, so long as they are not currently using drugs, including opioids, illegally.

If the use of opioids is “legal and not prohibited by another federal law, an employer cannot automatically disqualify you on that basis, or because of the medications used to treat [opioid use disorder], without considering whether there is a way for you to do your job safely and effectively,” said Rudy Sustaita, the EEOC’s regional attorney in Houston.

Connie Gatlin, the lead trial attorney for the case said, “If you are taking an opioid medication as directed in a medically assisted therapy (MAT) program, then you have a valid prescription. You cannot be denied employment or fired from a job because you are in a MAT program unless you cannot do the job safely and effectively or you are disqualified under another federal law.”

Experts battle it out in court

When the case went to trial, both sides presented experts who testified about opioids – and sought to exclude the testimony from the opposing side’s expert.

Ultimately, the court refused to exclude both experts. Instead, it determined both experts could continue so long as they did not testify about certain topics. Specifically, the EEOC’s expert could not testify that the company’s decision to rescind the job offer based on Dare’s use of opioids was “justified” and the company’s expert could not testify about legal conclusions related to the ADA.

The case had to proceed, the court held.

$35K to settle out of court

After the court’s ruling, the company agreed to pay $35,000 to the applicant to settle the case out of court rather than face a long — and likely expensive — legal battle.

Under the consent decree, the company will also revise its policies and provide ADA training to management, the EEOC announced in a press release.

Lessons for HR

This case offers several takeaways for HR:

• Engage in the interactive process: The ADA requires employers to engage in the interactive process with applicants and employees to determine whether they can perform the essential functions of the job with or without reasonable accommodations. A discussion about potential accommodations can help fend off lawsuits like this one.
• Provide regular and ongoing ADA training: Employment law is complicated. Both HR and hiring managers need regular and ongoing training to help them understand the nuances of the law, their legal obligations and best practices for compliance. Regular and ongoing training can help company leaders update drug testing policies and avoid mistakes that may lead to EEOC charges and lawsuits.
• Balance safety concerns and ADA compliance: When you’re dealing with safety-sensitive positions, of course safety has to remain top of mind. Even so, employers must also consider whether reasonable accommodations might mitigate potential risks associated with prescription meds. Opening the conversation may help company leaders find alternative solutions for safety concerns.   

Info: The Modern Group and Dragon Rig Sales to Pay $35,000 in EEOC Disability Discrimination Lawsuit, 5/15/24.

EEOC v. Mod. Grp. Ltd, No. 1:21-CV-451, 2024 U.S. Dist. LEXIS 53262 (E.D. Tex. 3/25/24).