The ever-evolving The ever-evolving
In this scenario, an employer very well may question whether the
employee is trying to cover up drug usage. However, there are a
number of reasons an individual may experience "bashful"
or "shy bladder," among them being a condition called paruresis, and another condition called benign
prostatic hyperplasia (BPH) (a common condition that affects men as
they age). Paruresis is a social anxiety disorder that affects an
individual's ability to urinate if other people are nearby, and
is believed to affect approximately 20 million Americans. BPH, in
turn, can block or restrict a man's ability to urinate,
including on command for a drug screen. Depending on the specific
facts in a given situation, and the size of the organization,
individuals affected by paruresis and/or BPH may potentially be covered by the ADA and/or the
ADEA with respect to pre- and post-employment drug screening. If a new or existing employee being subjected to a
urinalysis-based drug test mentions a medical condition, an
employer should treat that scenario like it would any other request
for a disability accommodation. If a medical condition claim seems
plausible under the circumstances, the employer should carefully
consider the availability of a feasible alternative, including
blood, saliva, or hair testing. The employer should also consider
whether different conditions can be created that would allow the
employee to provide a urine sample (i.e., a private
restroom, or a longer timeframe in which to provide a sample).
Employers are also entitled to request a doctor's note
providing support for the employee's inability to provide a
urine sample under standard drug testing conditions. As with any
accommodation scenario, the key for risk mitigation is the given
employer's willingness to engage in the interactive process and
be reasonably flexible. Few courts have specifically addressed BPH or paruresis in the
context of workplace drug testing, and there is no concrete
guidance from the EEOC in this arena. With respect to paruresis in
particular, several years ago the EEOC informally addressed whether
the condition qualified as a disability for purposes of the 2009
Americans with Disabilities Amendments Act (ADAAA). The EEOC
declined to reach a conclusion, but did note that bladder function
is a "major life activity" under the ADAAA. Because facts and circumstances vary widely, there is no
one-size-fits-all approach to guaranteeing an employer is protected
from ADA and/or ADEA claims with respect to its workplace drug
screening program. In light of that fact, employers should consult
regularly with experienced counsel to make sure they stay abreast
of current legal developments and requirements, and to ensure that
their workplace drug testing programs comply with applicable
laws. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Bashful Bladders Bring Problems For Employers
Foley & Lardner
Contributor
Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.
The ever-evolving legal landscape surrounding marijuana legalization has in recent years continued to cloud the waters with respect to workplace drug testing programs.
