Employee Using Prescription Medications Could Not Refuse Drug Test Under Theory That Employer "Knew" He Would Refuse

Why is it important to have a drug test policy for pre-employment and employment drug tests?  This case is an example of why a drug testing policy that clearly defines the employers policy to test both pre-employment and employees.  If the employer did not have a clear policy, the employer may have been liable to an existing employee for testing.  We recommend that our clients have clearly drafted drug test policies and that national employers consider state regulations in their policies.

An Iowa appellate court reversed an award of damages to an employee under the ADA after the employee was discharged for refusing to submit to a post-accident drug test. The employee had taken a number of prescription painkillers throughout his employment and due to safety issues associated with his job as a maintenance laborer, the employer prohibited the employee from using power tools or driving vehicles. At a subsequent time, the employee took a medical leave of absence while using the prescription painkillers, and upon his return to work, cut his finger. The Company's drug and alcohol policy required a post-accident test because the employee suffered an injury at work. The employee refused to submit to the drug test, even after he was advised that the test was for illegal drugs, not for prescription medications, and was subsequently fired. The employee filed suit under the ADA, arguing that he was terminated based on his disability. The case proceeded to a jury trial and the jury entered a verdict in the employee's favor. The appellate court reversed and dismissed the case, finding that the employer had the right to subject the employee to a post-accident drug test under its policy, and noted that the employee testified that he was aware that refusing to test could be grounds for termination. Employers should always include a provision in their substance abuse policies advising employees that refusing to test will lead to termination, and defining the types of conduct that constitute a "refusal to test."