Answer

A:

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 IPA’s 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, IPA’s 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 help.

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 who:

Has a physical or mental impairment that substantially limits one or more major life activities;

Has a record of such impairment; or

Is 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 done

, or to the changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training).

IPA’s 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 it’s critical to establish your legal case. Don’t 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 circumstances)

Requiring or implying that donors must drink more water (this is optional, not a requirement under SAMHSA rules, but not under DOT rules)

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 collector’s 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 don’t like to take these types of cases, but you should at least talk with a personal injury or employment discrimination attorney.

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 “Advocacy” section of our site’s Links page for information on locating your state’s office.

5) If you are a union member, talk to your union’s 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 don’t 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 talking.

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.