Late last year, Kmart agreed to pay $102,048 to settle a lawsuit that accused managers of discriminating against a job applicant during the drug testing phase of the hiring process. This case highlights important issues for any employer that uses drug testing.
According to the suit, the Kmart in Hyattsville, Maryland offered Lorenzo Cook a job and told him to go take the required pre-employment drug test. Cook told the store manager that he has kidney disease that required dialysis. Since he was unable to provide a urine sample, he asked to be given another form of drug test such as a test using hair or blood. Kmart refused to provide a different kind of test, and as we’ve seen in similar cases, no drug test- no job.
The EEOC filed suit accusing Kmart of violating the Americans with Disabilities Act (ADA). The ADA requires all employers to provide reasonable accommodation in situations like this unless they can prove it will cause an undue hardship to the company.
I checked with our Occupational Healthcare department and found out that they are able to set up accommodations for special needs in just a matter of days. The most common options are hair and blood testing, and can be arranged quickly and easily.
It’s not just the EEOC on the lookout for such violations. Attorneys are actually trolling for weak links in the complex employment laws. Just as you see advertisements asking if you’ve been hurt in a car accident, there are lawyers out there searching for people who have been turned down for jobs because of a background check. It just takes one mistake and you could be on the hook. It is essential that all businesses have a policy in place to provide drug screening alternatives when applicants and employees have disabilities.
The two-year consent decree that resolved the Kmart case requires the retailer to revamp its system to ensure compliance in all areas. They will be required to provide reasonable accommodation to all applicants. They must also retrain all of their managers and HR people in the district where this store is located on how to comply with the EEOC and the ADA. Stores will also be required to post a notice about the outcome of this lawsuit.
Drug testing is one component of a comprehensive drug-free workplace program, which typically includes:
- A written policy that clearly outlines employer expectations regarding drug use
- Training for supervisors on the signs and symptoms of drug use and their role in enforcing the policy
- Education for employees about the dangers of drug use
It is a best practice to have a comprehensive program in place before concerns related to drug use in the workplace are present.
Don’t be the next defendant! Review your drug testing procedures with your screening partner and your management team before an issue arises.
Employment Background Investigations is a technology driven leader in domestic and global pre-employment background checks, drug testing, occupational health screening and I-9 compliance. We specialize in development, implementation and management of customized employment screening programs for large and multi-national clients. We are dedicated to information security. EBI is the only NAPBS Accredited background screening company in the world to hold both an ISO 27001:2005 certification for information security and an ISO 9001:2008 certification for Quality Management.
All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice. Always consult your legal counsel for specific advice on state laws and industry regulations.