Another Employer Pays For “Sorry, I Can’t Go”

Constangy, Brooks, Smith & Prophete, LLP

Last October, I posted about a consent decree entered into between Wal-Mart and the Equal Employment Opportunity Commission, in which Wal-Mart agreed to pay $72,500 to candidate for a store job in Maryland whose offer was withdrawn because she couldn’t undergo a urine test for drugs.

The candidate had end-stage renal disease.Kidney

Now, Kmart has been hit, too, in a case involving almost identical facts at one of its stores in Maryland. Kmart has agreed to pay $102,000 and modify its drug testing policy to specifically provide for reasonable accommodations.

According to a lawsuit filed by the EEOC, Lorenzo Cook had kidney failure and could not produce a urine specimen for testing because of the disease and because he undergoes dialysis. He offered to be tested by some other method, including hair or blood. Two weeks later, Kmart told him the testing method had to be urinalysis and withdrew the job offer.

After Mr. Cook filed an EEOC charge, the EEOC filed suit on his behalf, alleging that Kmart violated the Americans with Disabilities Act by failing to engage in the “interactive process” and summarily denying his request for accommodation. The consent decree resolves the lawsuit.

Under the Consent Decree, Kmart agrees to post a revised policy on the company’s electronic recruiting and hiring system, spell out the company’s obligation to provide reasonable accommodations to employees or applicants in its alcohol and drug testing program, the accommodation process, and the person to whom a request should be directed. Kmart will also post a notice saying that it will comply with the ADA.

Common Sense Counsel: The ADA reasonable accommodation obligation applies not only to employment but also to the recruiting, application, and hiring process. If you test for drugs or alcohol, you should make sure that your policy provides for reasonable accommodation and, more importantly, that the people who make job offers and who administer the testing are familiar with ADA reasonable accommodation obligations. (If you are governed by another federal regulation, like the Department of Transportation regulations, you must comply with the latter, but you still have to make reasonable accommodations to the extent that the accommodations don’t violate your other obligations.)

Image credit: Flickr, Creative Commons license, by Hey Paul Studios.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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