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EEOC Targets Prescription Drug Testing Policies

Two recent cases filed by the Equal Employment Opportunity Commission (“EEOC”) reflect its current interest in employer related drug testing policies.

The first case was filed against Happy Jack’s Casino in South Dakota. An offer of employment was withdrawn after the prospective employee failed a pre-employment drug test. Her test revealed the use of hydrocodone for neck and back pain. In its lawsuit, the EEOC has challenged Happy Jack’s refusal to allow the applicant to show her underlying impairment and necessity for taking the prescription drugs. Also being challenged is Happy Jack’s policy that required all employees to disclose both prescription and non-prescription drug use regardless of their job position. The EEOC has also asserted that Happy Jack’s has engaged in unlawful disability-related questioning.

In the second case, the EEOC is pursuing claims on behalf of a Georgia physician who was fired for his use of narcotic pain medication to treat chronic pain. The doctor in question provided a note reflecting his need for narcotic pain medications to treat a medical condition. Within days, the doctor was fired. The EEOC has asserted that the doctor’s performance was not impacted by his pain medication use and has charged that the doctor was fired both based on his disability, and because he was perceived as disabled because of his use of narcotics. In its statement, the EEOC urged employers to conduct individualized assessments when there is a concern about the employee’s ability to perform his or her position.