Wal-mart, EEOC reach accord in drug test "accommodation" lawsuit

Laura Jones was offered a sales job at the Wal-Mart store in Cockeysville, Maryland, and was told that she would have to take a drug test. According to the U.S. Equal Employment Opportunity Commission, Ms. Jones told an assistant store manager that she had end stage renal cancer, which prevented her from taking a urine test. The EEOC says that Jones then went to the drug testing collection center and requested that an another type of test be performed, which the center said could be done if Wal-Mart ordered it. She then allegedly took that information back to the store, but was allegedly told that "corporate" would not allow an alternate test.

Wal-Mart's offer was withdrawn after Ms. Jones failed to be tested within 24 hours of the company's request, and the EEOC sued Wal-Mart for violation of the Americans with Disabilities Act. Wal-Mart filed an answer denying the EEOC's key allegations, but the denials are general, so it is difficult to determine the company's side of the story.

In any event, on October 21 Wal-Mart and the EEOC entered into a consent decree in which Wal-Mart will pay Jones $72,500. The company also agreed to provide notice to applicants of alternative specimen testing for those persons "whose physical condition prevents them from producing urine" and who request accommodations in the pre-employment drug screening process. The consent decree provides for use of blood tests when urinalysis is not possible.

Wal-Mart also agreed to provide 90 minutes of hiring manager training on the accommodation process and to post a notice to all store employees. The EEOC says it has filed similar lawsuits against Kmart (also in Maryland) and against the Fort Worth (Texas) Center of Rehabilitation. In all cases, the applicants had end-stage renal disease.

These EEOC lawsuits are a good reminder that the ADA reasonable accommodation obligation applies at the application and hiring stages as well as during employment. Employers are required to make reasonable accommodations that will allow individuals with disabilities to apply and be considered for jobs. This would obviously include accommodations in connection with the pre-employment drug testing process.

Transportation employers should already be familiar with the regulations of the U.S. Department of Transportation (found at 49 CFR Parts 193 and 195) pertaining to "shy bladder." Of course, DOT regulations do not apply to retail sales clerks or workers in a rehabilitation center. But the DOT also requires that accommodations be made if the applicant has a legitimate medical reason for not being able to provide a urine sample.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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