JUDGE - COMPANY'S DRUG POLICY VIOLATES ADA

In an epileptic man's suit over drug testing in the workplace, a
federal judge has ruled that employers can be sued for wrongful
discharge when their policy requires employees to disclose any
prescription drugs they are taking, forcing them to reveal their
medical conditions.

In her 32-page opinion in Rowles v. Automated Production Systems Inc.,
Chief U.S. District Judge Sylvia H. Rambo found that while employers
have an interest in a productive and drug-free workplace, there must
nevertheless be limits to drug testing.

"At some point, an individual's privacy interests trump an employer's
efficiency concerns," Rambo wrote.

"That point is when the invasion of privacy is `substantially and
highly offensive to the reasonable person'," she wrote, quoting from
the 3rd U.S. Circuit Court of Appeals' 1992 decision in Borse v. Piece
Goods Shop Inc..

In Borse, the 3rd Circuit envisioned two ways in which an employer's
urinalysis program might intrude upon an employee's seclusion --
either by the manner in which the test was conducted, since there are
"few activities ... more personal or private than the passing of
urine," or because the test could reveal "a host of private medical
facts," including whether an employee was epileptic or pregnant.

The 3rd Circuit recommended a fact-intensive analysis in wrongful
discharge suits based on a drug testing policy's alleged tortious
invasion of an employee's privacy.

The Borse opinion set forth a balancing test that would pit the
employee's privacy interest against the employer's interest in a
drug-free workplace.

The ultimate question, the court said, was to determine "whether a
reasonable person would find the employer's program highly offensive."

Rambo found that John A. Rowles presented just such a case and that a
jury must now decide whether the drug testing policy at APS was highly
offensive.

In another significant ruling, Rambo granted partial summary judgment
to Rowles' claim under the Americans with Disabilities Act.

As a matter of law, Rambo said, APS violated the ADA by having a
policy of prohibiting the use of certain prescription drugs -- even if
their use has no effect on job performance.

Rowles is represented by attorneys Lisa M. Rau of Kairys Rudovsky
Epstein Messing & Rau and Thomas H. Earle of the Disabilities Law
Project. For his epilepsy, Rowles takes an anticonvulsant, Dilantin,
and Phenobarbital to control his seizures.

In September 1996, Rowles applied for engineering position at APS and
consented to drug tests as a condition of being hired as a machine
design engineer.

APS immediately gave him a computer so he could begin work on an
urgent project, he says, and he was asked to take the drug test when
he reported to work in October 1996.

But Rowles says that when he finally got the chance to peruse the
company's drug policy, he realized that he wasn't being tested only
for illegal drugs. Instead, he says, the policy seemed to suggest that
he could be fired for taking his Phenobarbital prescription.

Rowles says he told his superviser of his epilepsy and prescription,
and that he had serious reservations about submitting to a drug test
because the company's policy seemed to prohibit the use of any
"controlled substance" -- even those prescribed by a physician.

When the time came for the drug test, Rowles refused to take it,
saying he feared that he would be fired for his use of prescribed
Phenobarbital. APS fired him for refusing to take the test and did not
offer to rehire him or allow him to take the test.

Rau and Earle argued that APS's policy violates the ADA because it
requires an employee to disclose any prescription drugs; and because
it prohibits the use of legally prescribed drugs without any showing
that testing for those drugs is "job related" and a "business necessity."

Rambo found that the ADA treats drug testing differently depending on
the stage at which the employer conducts the test. No drug testing is
allowed before the employer makes an offer, but some testing is
allowed post-offer, but pre-employment.

After an employee has started working, she said, the ADA gives
employers "considerably less latitude" in conducting examinations and
drug tests of current employees.

Rowles insisted he should be treated as a current employee since his
drug test at APS came after he was working there for several weeks.

But Rambo agreed with the lawyers for APS who said the test was
legally post-offer, but pre-employment since Rowles was given forms
that said his employment was conditional upon passing drug test.

As a result, Rambo found that Rowles fell into a category of employees
who enjoy the lowest level of rights in the drug-testing context. His
status as a worker on the threshold of joining the workforce placed
him in that unusual window of time in which an employer has the
opportunity to do some drug testing.

Despite placing his case in that category, Rambo found that APS's drug
testing policy had at least one indefensible provision since it
prohibited the use of certain drugs, even if they were prescribed by a
doctor.

APS insisted that its policy was designed only to weed out use of
illegal drugs.

But Rambo said "the court declines to ignore the text of APS's drug
and alcohol abuse policy."

Under the clear language of the policy, she said, clearly provides for
the firing of an employee who takes Phenobarbital, even if it was
prescribed to control seizures. An employee like Rowles, she said,
"must take the medication while at work, yet doing so is a direct
violation of the policy."

But Rambo stressed that her grant of summary judgment was only partial
and that Rowles must still show that his termination resulted from the
illegal policy.