Americans’ use of prescription painkillers, anti-anxiety medications and other drugs with psychotropic effects has exploded over the past decade. Many of these medications include warnings for persons who take them with regard to driving or operating heavy machinery. Given these statistics, manufactures in particular have increasing concerns over how many of their workers are reporting to work under the influence of legal prescription drugs that could present safety issues in the workplace.

Last month, the Sixth Circuit Court of Appeals issued a split decision that gives some hope to employers that seek to mitigate these risks through employee drug testing programs. In Bates v. Dura Auto Sys., Inc., following a series of workplace accidents, the employer began testing current employees for both illegal drug and prescription drug use. In addition to illegal use, the testing service reported to the employer employees who tested positive for use of designated drugs believed to be inconsistent with safe operation of machinery, even if they had a legitimate prescription for the medication. These employees were offered the option to stop using such drugs or face termination.

A group of terminated employees sued, claiming that the drug tests were illegal medical examinations under the Americans with Disabilities Act. A jury awarded the plaintiffs close to $1 million,  concluding that the tests were performed without business necessity and therefore violated the ADA. On appeal, the employer claimed that the drug tests did not constitute medical examinations as defined under the ADA, and therefore were not prohibited.

In a 2-1 decision, the Sixth Circuit concluded that the tests may not have been ADA medical exams, and remanded the case for a jury determination on this issue. The EEOC’s ADA guidelines contain a specific exception from the definition of medical examinations for tests for illegal drug use. However, the rules say nothing about testing for legally prescribed medications. The plaintiffs claimed that such tests were ADA medical exams, because they resulted in the employer learning that employees using such drugs suffered from some sort of impairment. The employer noted that the program sought no medical information from employees other than the use of the specific drugs known to have work restrictions.

The majority decision stated that the EEOC guidelines classified illegal use of prescription drugs as outside the definition of medical exams. Therefore, the ADA exception is not limited to use of illegal drugs. The key factor is whether the tests are designed to reveal a medical impairment. Use of legal prescription drugs does not necessarily mean that the employee has an ADA impairment. The court could not conclude whether this was the case here, and remanded this factual determination for a jury determination. The dissenting judge said that the policy was designed to fire employees with certain health conditions because it did not include any follow-up with the employees’ doctors to determine if the prescription drug use was actually consistent with his or her job duties.

In this case, the employer’s drug testing program and termination policy was especially aggressive. Employers seeking to reduce accidents attributable to prescription drug use in the workplace may be better served by building into the policy steps noted in the dissent. A general warning by a drug company about operation of machinery may or may not be indicative of an actual workplace risk, depending on the employee's ’individual medical circumstances. If the employer allows the employee to present information from his or her doctor regarding the effect of the prescription drugs on workplace safety, or if the employer subjects the employee to an independent medical opinion on this issue, its ultimate decision may be considerably more defensible against a later ADA claim.