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Additional random drug and alcohol testing not adverse action under ADA

By Kathleen Kapusta, J.D.

The disruption employees experienced when they were pulled from their job assignments, without advance notice, to go to a testing facility was not a materially significant disadvantage with respect to the terms of their employment.

Dismissing with prejudice the ADA disability discrimination claims of seven current and former utility company employees who were subjected to ongoing random drug and alcohol testing pursuant to the company’s “On Call” program after testing positive on a DOT protocol test, a federal district court in New York explained that requiring an employee to be tested pursuant to the program was not an adverse employment action. Their claim that they were subjected to impermissible disability-related inquiries was dismissed without prejudice, however, as to six of the employees (Vuono v. Consolidated Edison of New York, Inc., June 10, 2019, Caproni, V.).

Most of the company’s 7,500 employee are subject to random drug and alcohol testing pursuant to the U.S. Department of Transportation’s regulations (DOT protocol testing). Employees who test positive on a DOT protocol test can be placed in the company’s On Call program, which requires testing in addition to the DOT testing. Employees in the On Call program can be removed without any notice from their worksites and required to undergo testing.

Placed in the program. Six of the plaintiffs tested “positive” (four produced “cold” urine samples, one tested positive for Oxasepam, and one failed to produce a urine sample of sufficient volume) on a DOT protocol test and the seventh was placed in the program after being arrested for driving while impaired. They alleged that they were subjected to random On Call tests, their coworkers knew of their participation in the program, and they were subjected to stigma and suspicion of ongoing drug and alcohol use even though none of them was a substance abuser.

Suing under the ADA, the employees claimed the company discriminated against them on the basis of disability and subjected them to impermissible disability-related inquiries.

No adverse action. Even assuming the employees had or were regarded as having a disability within the meaning of the ADA, the court found they failed to plausibly allege they suffered an adverse employment action. There is no bright-line rule for determining whether a challenged employment action is sufficiently adverse to qualify as an adverse action, said the court, but drug and alcohol testing by an employer generally does not qualify as adverse under the ADA.

As an initial matter, the court pointed out that the employees made clear they were not suing over the initial decision to subject them to On Call testing but rather were challenging the continued month-after-month testing despite the lack of business necessity. Thus, said the court, their discrimination claim turned on whether the “excessive” drug and alcohol tests to which they were subjected while in the On Call program qualified as adverse actions.

And here, requiring employees to be tested pursuant to the On Call program did not constitute an adverse employment action, said the court, noting the disruption they experience when they are “pulled from their job assignment, without advance notice, to go to a Con Ed drug testing facility” is not a materially significant disadvantage with respect to the terms of their employment. There were no facts suggesting that additional On Call testing was so frequent and so invasive that their continued participation in the program was remotely comparable, let alone tantamount, to a demotion, a pay cut, a transfer, or any other typical adverse employment action, the court explained.

Embarrassment not enough. Nor did the On Call testing rise to the level of an adverse action because they were embarrassed and believed their coworkers suspected them of engaging in ongoing drug and alcohol use. Because they did not allege the stigma they experienced caused or corresponded with any materially significant disadvantage—such as demotions, job transfers, foreclosure of advancement opportunities, or other tangible changes in the conditions of employment—they did not adequately allege that being sent for drug tests was an adverse action, said the court, dismissing the claim with prejudice.

Disability-related inquiries. As to their claim they were subjected to impermissible disability related-inquiries, the court found it was time barred; there were no specific allegations of On Call testing within the applicable 300-day window from the date of filing their EEOC charge. They alleged that “not a single test [of these Plaintiffs] since 2016 has resulted in a positive finding;” that five of the employees remained in the program as of November 2, 2018 (the date the Third Amended Complaint was filed), and thus were still subject to random testing pursuant to the program; and that with respect to one, “On-Call testing continues to this day.”

But there was no specific statement about the frequency with which they have been tested or when each was last tested, said the court, finding these allegations were simply too vague to support an inference that any of them was tested pursuant to the On Call program during the applicable time period.

Nor did they sufficiently allege a continuing violation theory. Indeed, said the court, their contention that “each test is a unique event, and that each time a plaintiff is tested, a new violation of the ADA occurs,” if true, foreclosed any continuing-violation theory as a matter of law. Nonetheless, the court granted leave to amend as to this claim to all but one of the employees whose employment ended before the 300-day period for filing an ADA claim with the EEOC began to run.