ARTICLE
25 April 2019

Bashful Bladders Bring Problems For Employers

FL
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.
United States Employment and HR

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.

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