Good news for all you drug abusers who work at a company that requires its employees to undergo periodic drug testing by means of providing a urine sample: If you can't pee on cue, the bashfulness of your bladder may be a disability that's covered by the Americans with Disabilities Act.
In August, the U.S. Equal Opportunity Employment Commission responded to a citizen who asked whether paruresis, otherwise known as Shy Bladder Syndrome, is covered under the ADA as a legitimate disability. The EEOC has now made its response public, noting that the response "is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission." The conclusion of this informal letter basically states that employers may have to make reasonable accommodation for people with Shy Bladder Syndrome because the condition could be considered a disability under the ADA.
To try to get a sense of what that means to companies that are confronted with an employee who says he can't undergo drug testing because he can't urinate on demand, I spoke earlier this week with Jonathan Segal (whose middle name is not Livingston-yes, I asked, because I knew you'd be curious), an employment services lawyer and director of the Duane Morris Institute, a continuing education program for lawyers and HR professionals run by national law firm Duane Morris. Segal had written an entertaining blog post on the topic, in which he indicated that he thought the EEOC's time could be better spent, but that it's a discussion that warrants employers' attention.
For starters, I asked him if he thought the EEOC was using the letter to seek public commentary before drafting a regulation. Segal said he would be surprised if the EEOC came out with a regulation specific to this issue:
I think they sent it out there, in part, so they can let people know this is something they're looking at. If you're an employee who can't pee on cue, you may have rights. If you're an employer, you'd better be aware that the EEOC is looking at the issue. What the EEOC has been doing in some areas is sort of signaling their enforcement position. And depending on with whom you speak, you may get different answers on what they're signaling. Those who are more jaded may say the EEOC is trying to stimulate claims. Or you could say the EEOC is trying to be transparent, so that individuals know where [the EEOC is] going. If you're an employer and you fire an employee and he says he has this condition, you don't say, "I don't buy it." The EEOC is not going to ignore Shy Bladder Syndrome automatically-they're going to look into it and do an evaluation. Since it's primarily an anxiety disorder, although there is a physical component to it, you could see where someone might be able to even fool a doctor on it. So the question becomes, if you're an employer, do you want to spend money trying to get into the medical reasons why someone can't pee on cue, or do you want to have a fallback just in case? Hair testing is one option; some are using saliva testing. It's a good example of how if you just have a backup plan as a standard operating procedure, and it's inexpensive, you can save money and avoid all the legal complexities.
Segal said employers should consider this a wake-up call, because it's not just about Shy Bladder Syndrome:
To me, and this is the most telling part of it, it tells you how broadly the EEOC is going to interpret "disability." The ADA was amended to make the definition of "disability" much broader. The regulations interpreting the amendments to the ADA go very far, and now it looks like the EEOC is going to go even further in interpreting the regulations. And now you have advice opinions, or informal opinions, taking it even further. So if you look at the trend, the big picture, the reality is we are all disabled now. And for most employers, the key is going to be not getting caught in the minutiae of whether a particular condition, say, lower back pain, requires a medical examination, but dealing with it on a more practical level. You end up with a shift in focus, where you begin with the presumption that most conditions are likely disabilities under the ADA, and you begin looking at reasonable accommodation.
For companies that are dealing with an employee who claims to have Shy Bladder Syndrome, then, Segal's advice is to avoid the medical issue altogether and focus on accommodation:
Tell him you're going to accommodate him by taking a hair or saliva specimen. You have a standard operating procedure, pursuant to which you say to an individual, "The guideline is, if the individual cannot provide a urine specimen, he will be sent back to the workplace, and the workplace will arrange right away for there to be a hair or saliva specimen." That way, you duck the entire medical issue. Another example is depression -- if the definition of "disability" is as broad as it is, why go down that road and spend the time and money? Regardless of whether someone's depression rises to the level of a disability, make a reasonable accommodation. It's not the end of the world. A lot of times that's good business, to try to help an employee without getting into an overly legalistic approach. It's really important for employers to make it clear that they're making the accommodation without making a determination of whether there's a disability. You're saying, "Regardless of whether you are disabled, we would like to try to help you."
Finally, Segal stressed that employers would be well-advised to have a good Employee Assistance Program in place, so employees know if they have a problem, they have a resource that can help:
So a really good substance abuse control program has a testing component to detect use, but it should go further. It should include an educational component and a confidential EAP resource, so the employer provides the employees with the tools. The real goal from the employer's perspective isn't to catch people and fire them. The real goal, ideally, would be to help people without delving dangerously into their lives.