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"One Strike" Applicant Drug Testing Policy Does Not Violate ADA

    Client Alerts
  • March 11, 2011

Many employers test applicants for drug use after making a conditional offer of employment. If the applicant tests positive, he or she is disqualified from employment, sometimes permanently.  Last week, the Ninth Circuit Court of Appeals rejected a claim from an applicant that such permanent disqualification violates the Americans with Disabilities Act.

In Lopez v. Pacific Maritime Assoc., the plaintiff was rejected for a longshoreman position, and claimed that this policy violated his ADA rights as an individual with a record of a disability, in his case, a rehabilitated drug addict. The Ninth Circuit affirmed dismissal of the claim on summary judgment. In its decision, the court said that the employer's rule did not discriminate against former drug addicts, because it disqualified from employment all persons who tested positive, whether or not the drug use was related to an addiction.

The Ninth Circuit also concluded that the employer and the bargaining representative had clear safety concerns that prompted its adoption of the policy. It was not put into place to weed out drug addicts. Finally, the employer's knowledge of the plaintiff's addiction subsequent to his second application for employment makes no difference in its neutral application of the one strike policy. The court also rejected the plaintiff's disparate impact claim by noting that the challenged policy would not screen out recovering drug addicts who did not test positive in the pre-employment screening.

Most employers do not permanently disqualify applicants based on an initial positive drug screening. However, this decision provides legal justification for those employers who decide to take a hard line on possible drug use in the workplace.