A recent opinion by the U.S. Court of Appeals for the Ninth Circuit clarifies employer liability under the Americans with Disabilities Act (ADA) where the employer maintains a lifetime ban on employing individuals that fail a pre-employment drug and alcohol test.
In the case, Lopez v. Pacific Maritime Association, the plaintiff challenged a union’s one-strike rule, which provided that one positive drug or alcohol test during pre-employment testing permanently prohibited hiring of the applicant. The plaintiff in the case was rejected for employment as a longshoreman due to a positive test for marijuana usage during his screening when he applied for a position in 1997.
After receiving treatment for his drug addiction, he again applied for employment in 2004, but was refused based on the one-strike rule. The plaintiff claimed he suffered discrimination based on a disability – his former drug addiction.
The court ruled that since the one-strike rule was the same for both addicts and recreational drug users and the union was not aware of plaintiff’s status as a former drug addict, intentional discrimination of the applicant based on his addiction had not occurred. The court also found that the union’s rule was based on a long history of injuries and fatalities in the longshore industry resulting from the use of alcohol and drugs in the workplace.
The plaintiff’s disparate impact discrimination claim also failed, because the plaintiff did not present any evidence that the number of recovered drug addicts employed as longshoremen was disproportionate to the number of recovered drug addicts in the general labor market. Despite the likelihood that a lifetime ban weeds out recovered drug addicts, the Court required statistical evidence to establish that recovered addicts are disproportionately disqualified under the policy.
The ruling provides some reassurance to employers that prohibit hiring of applicants with past failed drug tests for legitimate safety and risk reasons.. U.S. Labor Statistics estimate that drug use in the workplace costs employers approximately $75 to $100 billion dollars per year in lost time, accidents and health care and workers compensation costs. An effective drug testing policy can substantially improve employee safety, company risk management and cost reduction.
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