Employment & Labor Insider

A probation and parole officer (we’ll call her “Suzie”) employed by the Oklahoma state Department of Corrections was diagnosed with attention deficit and hyperactivity disorder and had been on prescription Adderall since 2019. Adderall is an amphetamine. When Suzie began taking Adderall, she promptly notified her supervisor (we'll call him "Jason") as well as Human Resources about her ADHD condition and the Adderall. The information was noted in her file.

Way to go, Suzie!

Suzie allegedly began having some unspecified attendance and disciplinary issues. Then, Jason reported that her office was smelling like weed, and I don't mean crabgrass. He requested permission from the powers that be to send her for a “for cause” drug test.

(In Oklahoma, some medical marijuana use is legal, but recreational use is still illegal.)

The request for a “for-cause test” was granted, and Suzie was suspended with pay pending the outcome.

Jason drove Suzie to the drug testing facility, and she told him that she was afraid her Adderall might cause her to have a positive test result. Jason replied that, if the Adderall was the only drug that showed up on the result, she would be fine.

Good answer, Jason!

Either Suzie or "the system" provided Suzie’s contact information to the lab. Whoever or whatever it was listed her office phone number for daytime (even though she was suspended from work), and her cell number for evenings.

Suzie underwent the test, which came back positive for amphetamines.

The Medical Review Officer’s procedure for positive drug tests was for the MRO to contact the employee who tested positive and try to determine whether the positive result might have been caused by a legal medication or substance.

Good procedure, MRO!

Under that policy, the MRO was required to make three attempts to contact the employee before reporting the positive result to the Department. If the MRO could not contact the employee, he was supposed to notify the Department’s HR representative. The Department policy said that HR was supposed to try to contact the employee and warn that serious consequences would ensue if the employee did not contact the MRO. The policy said that if the employee couldn’t be reached by phone or in person, HR should send the warning by email or snail mail, or by some other means.

In this case, the MRO made the required three attempts and got no response. The record did not indicate which number(s) he tried. But all three calls were made during normal business hours, so I suspect he may have called the daytime office number. If so, he probably got voice mail and no return call because Suzie was suspended and wouldn't have been at the office.

Jason said that the "drug testing company" contacted him after the MRO's three unsuccessful attempts to call Suzie. Jason said that he provided “the number I had for [Suzie].” But he apparently didn’t notify HR and didn’t try to contact Suzie on his own.

And everything was going so well!

Of course, Suzie was fired for failing her drug test. Then she sued the Department, claiming disability discrimination and failure to accommodate her ADHD condition.

(Her claims were brought under Oklahoma law and the federal Rehabilitation Act of 1973, which is the predecessor of, and very similar to, the Americans with Disabilities Act. The Rehabilitation Act applies to federal contractors and entities that receive federal funds.)

Last week, a federal judge granted summary judgment to the Department on Suzie’s discrimination claims. But he said that her "failure to accommodate" claims should go to a jury.

Here is where the court was coming from:

• Jason knew Suzie had ADHD that required her to (legally) take prescription Adderall, an amphetamine.
• HR also knew this.
• When Jason drove Suzie to the testing facility, she told him that she was afraid she might test positive for amphetamines because of the Adderall.
• Suzie apparently tested negative for marijuana but positive for amphetamines, just as she had feared.
• The Department failed to follow its own policy regarding contacting an employee who had tested positive. Failing to follow your own policy without a good reason is not cool. And when the MRO mistakenly contacted Jason rather than HR, Jason didn’t notify HR or Suzie. Or anyone else, apparently.
• The Department made no effort to determine whether the legal Adderall that Suzie was taking for a legitimate medical condition might have caused her positive result.

Employers, the moral (should that be "morals"?) of the story is ("are"?) this:

• If an employee has a disability, and you know that he or she is taking a legal medication for it that could have caused a positive drug test result, you are expected to try to accommodate the employee. That could mean treating the positive result as if it were a negative result.
• Make sure your supervisors understand this and the importance of referring all drug testing issues to HR or your medical department, if you have one. Supervisor training may be required to get the point across.
• Follow your policies and procedures, duh.
• If your employee has disclosed that he or she is on legal prescription medications, and then that employee tests positive for illegal drugs, do follow up with both the MRO and with the employee. If the MRO confirms that the legal medication could have caused the positive result, give the employee the benefit of the doubt.

POSTSCRIPT: A few days after Suzie's court decision was issued, the Department joined Suzie in asking the court to let the parties have a settlement conference. (The court granted the motion, so it looks like the case will settle.)

Good call! Now you’re back on the right track!