Q: Iíve lost my job (or employment offer) due to being unable
to provide a urine sample. What can
1) Find a lawyer experienced in Equal Employment Opportunity law, disabilities,
and employee law. If you live in a
small city, travel to a nearby larger city if necessary to find someone
qualified. Ask about their
experience in these matters and their willingness to represent you as a disabled
person, before you sign a contract or retainer agreement. If the lawyer lacks past experience in defending disabled
clients, look for someone else. It
is IPAís position that anyone with paruresis has a disability if they
experience difficulty providing urine specimens for employment. These days, 60% of companies do urine testing, and if you
can't provide a urine specimen, then you have an employment disability. Note that currently, IPAís position of paruresis being a disability has
not been established in court in all states. IPA is trying to establish legal
protection for paruretics. This
that will take time until we are successful. Your assistance, both financial and in notifying us of test cases, can
The Americans With Disabilities Act (ADA) has a three-part
definition of "disability." The definition is based on the one given
in the Rehabilitation Act, and reflects the specific types of discrimination
experienced by people with disabilities. Therefore, it is not the same as the
definition of disability in other laws, such as state workers' compensation laws
or other federal or state laws that provide similar benefits for people with
disabilities and disabled veterans. Based
on experience, your lawyer will know the best way to pursue a claim given the
different laws involved where you live.
Under the ADA, an individual with a disability is a person
a physical or mental impairment that substantially limits one or more major
a record of such impairment; or
regarded as having such impairment.
A physical impairment is defined by the ADA as:
"Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body
systems: neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive, genitourinary,
hemic and lymphatic, skin, and endocrine." (Emphasis added.)
Because paruresis affects the genitourinary system and
employment is a major life activity, denial of employment due to paruresis in
the opinion of IPA is discrimination, and a violation of the ADA.
Under the terms of the ADA, any employer with 15 or more
employees is a "covered employer." A qualified individual with a disability is protected by the ADA. Both an
applicant and an employee are subject to the ADA's protections. Covered employers are required to provide reasonable accommodation for
qualified individuals unless doing so would cause undue hardship. According to the US Equal Employment Opportunity Commission,[ix]
a reasonable accommodation is any change in the work environment or in the way a
job is performed that enables a person with a disability to enjoy equal
employment opportunities. The EEOC
lists three categories of "reasonable accommodations":
changes to a job application process
changes to the work environment, or to the way a job is usually
changes that enable an employee with a disability to enjoy equal
benefits and privileges of employment (such as access to training).
IPAís position is that any employer who does not provide
an alternative (non-urine) means to provide a drug test for a person with
paruresis violates category (i) if an applicant is applying for a job, and
violates category (iii) if an employee is subject to drug testing as a condition
of continued employment.
2) Have an independent drug test done. The purpose of this test is to show that at the time of your original
drug test, you were clean of drugs. Once you have that unassailable fact established by documentation from a
doctor's office, then a judge and jury are likely to find in your favor. Don't put this step off, as itís critical to establish your legal case.
Donít go to any small drug testing office to get this done; go with an
industrial medicine practice or other large medical practice that will have a
doctor with sufficient credibility. IPA
recommends that you get a hair drug test because hair tests look back 90 days
which is more than sufficient to cover your event period, thus proving you were
clean of drugs at that point. Alternatively
saliva, urine or even a blood test could be used to establish your innocence on
drug use. Blood tests carry less
weight because most drugs are cleared from the blood more quickly than with any
other popular testing method. Therefore,
IPA recommends not using them unless you have specific reasons why a blood test
would bolster your case. It will
likely cost you somewhere around $100 to obtain the test. It is well worth the money because of the legal weight the
test results will provide in court.
3) Write down the details of what happened to you during
the drug test. What were the
comments made to you regarding test procedures, were you intimidated in some
way, was there a lack of privacy, etc. We
have found in numerous cases that urine collectors have violated the Federal or
non-Federal (DOT) standards for drug testing in such areas as:
- Not referring the candidate to a doctor's office for shy bladder
diagnosis where appropriate (required by DOT standards in specific
- Requiring or implying that donors must drink more water (this is
optional, not a requirement under SAMHSA rules, but not under DOT rules)
- Keeping donors longer than the currently allowable 3 hours
- Where public restrooms are used with a collector positioned in the
restroom, the collector must be of the same gender as the donor
- Timing the person giving the urine sample.
The person has three hours to provide a sample, but there is no
regulation stating how long a person needs to take at any given try during the
three-hour period. Collectors often
confuse a rule requiring them to test the temperature of urine within four
minutes after its production with a non-existent rule that donors have only four
minutes to try to produce a sample.
Whatever details you can remember about how you were
treated might strengthen a legal case, so please write them down. Try to obtain the name of the urine collector, the name of the
collectorís supervisor, the name of the testing company, the name and business
address of the Medical Review Officer associated with the testing company.
You will also need to find out exactly which regulations
apply to your situation. Remember,
DOT and SAMHSA rules do not apply in most testing situations, particularly for
the private sector. Private
employers have a great deal of freedom to do as they wish consistent with the
laws of their own state. What this
means is that you may have few legal rights or remedies. However, you always have a right to sue if you are harmed (physically or
emotionally) by mistreatment at the urine collection site. You may need to discuss these sorts of issues with your own attorney.
It seems that typically they donít like to take these types of cases,
but you should at least talk with a personal injury or employment discrimination
4) Go talk to your state's Equal Employment Office. An IPA member, who was rejected on a pre-employment drug test for not
being able to provide a urine sample, went to the Nevada office. He was subsequently offered the job after he had accomplished Step (2)
above and after the Nevada office appealed on his behalf. At IPA, we are yet unsure what this resource can do for us but they have
offices in each state and should not be overlooked. See the ďAdvocacyĒ section of our siteís
Links page for information
on locating your stateís office.
5) If you are a union member, talk to your unionís
grievance representative. The union
may be able to help you in defending your case. IPA has heard of unions being very supportive of employee rights in
botched drug testing incidents. This
is a situation where your dues payments may be worth every penny.
6) Obtain a document signed by a medical doctor that
expresses the diagnosis of shy-bladder or paruresis for you. A drug testing Medical Review Officer (MRO) has previously sent a letter
to IPA emphasizing the importance of this pre-drug test documentation. His opinion was that anyone with paruresis is going to know about it and
have documentation prior to any drug test. Without this documentation, his judgment, of 14 years experience, was to
disallow any claim of paruresis. Ideally
you should have this documentation before taking the test, but if you donít
have it you will need it in court to argue your case. It will also carry weight in any employee/agency negotiations.
7) Meet with your agency or company employee
representatives. You may want to do
this with legal and/or union representation.
In that meeting, communicate the following:
- You have a urination disability.
- You have documentation of your disability diagnosis (shy-bladder,
paruresis) by a medical doctor.
- You have had an independent drug test done and it proves you are clean of
illegal drug usage.
- You request "reasonable accommodation" under the Americans With
Disabilities Act. The Reasonable
Accommodation you request is one of the Alternative Tests now being considered
by the US Department of Health and Human Services (HHS) and Department of
Transportation (DOT). That includes
Hair Testing, Oral Fluids (saliva), or Patch (Sweat) testing.
Even blood testing is acceptable if necessary to prove your innocence.
Note (1): Please
do not get emotional, excessively angry, or threaten bodily harm to employer
representatives, drug testing personnel, or any other people involved in this
negotiation. Such actions may only
convince the employer to fight harder to deny you employment and could limit any
settlement. Should you need to
pursue the claim in court, maintaining a professional demeanor will deny the
employer an opportunity to use evidence of your emotional actions against you in
their testimony. Try to be calm,
cool, and confident in the reasonableness of your case.
If you have any doubts in being able to stay cool, let a lawyer do the
Note (2): Depending
on your individual situation, the sequence of the above steps may vary.
Note (3): If
you are a Federal worker, you have avenues available to you that should not be
ignored, such as an Agency EEO office, grievance procedures, appeals to the Merit
System Protection Board and the courts, etc.
But the basic steps listed above should still be relevant except that in
Step 3), you would deal with the Agency or Federal
EEO office instead of your state's equal employment office.