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Jonathan A. Segal
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A drug user is required to provide a urine specimen as part of an employer’s consistently-applied drug testing program. The individual claims that he or she cannot because he or she has “Shy Bladder Syndrome,” technically known as paruresis. Paruresis is an anxiety disorder as a result of which an individual cannot provide a urine specimen in public places or in close proximity to others.

Is the applicant or employee with paruresis entitled to a reasonable accommodation?  Under a recent EEOC informal opinion letter, the answer may be “yes.” http://www.eeoc.gov/eeoc/foia/letters/2011/ada_definition_disability.html

By way of background, under the ADA, an individual has a disability if he or she a physical or mental impairment that substantially limits one or more major life activity. Under the ADA as amended by the ADAAA,  it is substantially easier for an individual to meet this standard.

The ADAAA includes within the definition of major life activities major bodily functions, such as bladder functions. According to the EEOC’s “informal” opinion, it is possible that paruresis may be a disability for some under the ADA if the anxiety disorder substantially limits their bladder functions.

I have no doubt that some individuals have paruresis. I also have no doubt that some illegal drug users will argue that they have a bashful bladder to avoid detection of  their illegal drug use.

So how should employers respond to bashful bladders?

One option would be to offer assertiveness training so that every bladder can realize its full potential.

A second option (required for donors covered by DOT) would be to ask the MRO to arrange for a medical evaluation to determine if the failure is because of a legitimate medical reason. But this takes time and costs money and the delay may allow the donor who uses illegal drugs to avoid detection.

The third option would be to establish a protocol that, whenever an individual cannot provide a urine specimen, he or she must provide a hair specimen.  This option would not be available if a medical evaluation is required (for example, for donors covered by DOT) or if hair testing is prohibited by a state or local law (or a union contract).

I favor option 3. However, even with hair testing, there are legal issues that need to be considered. What if an individual has no body hair except pubic hair?  The employee’s bladder may be bashful but his or her lawyer won’t be if you go there.  Employers will need to think through how they will address this and other issues relating to hair testing.

Don’t be surprised if we soon hear about Bad Hair Day Syndrome: fear of providing hair specimens on bad hair days. I’ll put that one on the bottom of my list of worries.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP OR AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
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Jonathan A. Segal
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It is a great honor to have been asked by SHRM to blog for We Know Next.  To learn more about We Know Next, please check out www.weknownext.com

I also am pleased to include my first blog for We Know Next:  http://www.weknownext.com/blog/when-is-hr-consistency-foolish

I welcome ideas for future blogs in which the focus will be on what we can do–not what we can’t do.

Thanks

Jonathan

215-979-1869

About Jonathan A. Segal
596
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .