Pee Dammit! Or You Don’t Get The Job!






Pee Dammit! Or You Don’t Get The Job!

Public restroom in the center of city

As a long-suffering Jets fan, with 25 years’ season tix under my belt (not any more!), I know what it’s like to consume beer in the parking lot for hours only to have to wait in a long line in the stadium when the call of nature inevitably arrives — and to see a hundred other guys lined up before you.

Bad enough. Worse is when it’s your turn — and the crowd behind you is screaming for you to hurry. And your system decides to seize up.

Ugghh!

An unfortunate part of football fandom, but what if your job, and career, depended on your being able to pee on command, and you were unable to do it?  

This is not a hypothetical.    

I’m Applying To Be A Mail Clerk — You Need My Urine?

Yes, a great many companies employ all sorts of tests to see if someone is currently “abusing” drugs. Typically, a would-be employer “conditionally approves” an applicant’s hiring pending the passing of a drug screening. This may or may not be legal in any particular state (it invariably is), but it better not violate the Americans With Disabilities Act (“ADA”). How?

The ADA provides that where an otherwise qualified applicant or employee claims a disability the employer must engage in meaningful discussions to see if there are any reasonable accommodations that do not create an undue burden. The EEOC has repeatedly stated that an employer has an “affirmative duty” to engage in this interactive process.

Well, some folks have medical conditions which render them unable to comply with the typical drug screening — providing a urine sample. Some of these conditions may be considered a disability under the ADA. 

An EEOC lawsuit was just settled where a company “conditionally approved” an applicant’s hiring pending passing a drug screening involving a urine sample. The applicant said that “he was unable to provide a urine sample due to his bladder exstrophy, but could provide blood for the drug screening.”  He was nonetheless rejected.

Ka-ching! Pay $30,000 and do not pass go. The company did not engage in the necessary interactive process to determine if there was a reasonable accommodation for the applicant’s underlying condition and his pre-hiring urine problem. And in fact there are adequate alternatives to urine testing, such as blood testing and hair sample testing, which have been upheld as reasonable accommodations.

In another case, an applicant for a position with a healthcare company (of all places) suffered from end stage renal disease and was receiving hemodialysis treatment — a recognized disability. She received a written job offer “contingent upon successful completion of a pre-employment drug screening.”

However, she said that she was unable to provide the required urine sample because of her disability, but also said that “her dialysis center would perform a different kind of drug test in place of the urine testing.” Seems reasonable. But the employer refused her request for this alternative and she did not get the job. The company settled for $35,000.

So What’s This About Peeing On Command At A Football Game?

These cases involve serious physical conditions involving the excretory system. But what about people — like me — with no systemic physical disorder but who simply freeze up when the required act is demanded?

There is a condition which, if chronic, is known as “paruresis,” “shy bladder” or “bashful bladder.” In another words — performance anxiety. It is “the inability or difficulty to urinate in the presence of other people, when under time pressure, or on vehicles such as trains or airplanes.”

But is it a disability for purposes of the ADA if because you have a shy bladder you cannot provide urine as requested for a drug screening?

Not clear. But without in any way minimizing the condition (many people really do suffer this: see Carol Olmert’s Bathrooms Make Me Nervous), what “major life activity” (under the ADA) is substantially limited by possessing a shy bladder? In 2011 the EEOC considered this issue and published an informal opinion letter, but came to no definitive or clear conclusion. 

But classified as an anxiety disorder, some medical personnel consider that sufficient to be deemed a disability. Apparently, “[t]he condition is recognised by the American Urological Association,” and “[t]here is growing recognition of the condition by the UK’s National Health Service (NHS) and government.”

One support organization notes that “about seven percent of the public suffer from some form of this social anxiety disorder.” 

And indeed there are accommodations — whether or not paruresis is deemed an ADA disability.

First, there are the alternatives of blood or hair testing. There is also something known as a “top hat” — a plastic thing that can sit across the toilet and can collect urine in a more private venue where the applicant is under no pressure. It may be more time-consuming than simply demanding a urine sample, but it can be done and is an effective alternative.

In one ADA court filing, a paruresis sufferer claimed that if she “cannot flush the toilet or run the water in the sink, she is generally unable to urinate in a public restroom.” But she could provide a urine sample by using a single-stall restroom or by running water to cover the sound of her urinating.  

Seems like an easy enough fix — and a reasonable accommodation. 

Takeaway 

Even if a “shy bladder” is not considered a disability, which has not yet been definitively determined, nonetheless there seem to be cheap and easy — reasonable — ways to accommodate a person suffering with paruresis. So if you are an employer, why put yourself in a situation where you may become subject to suit, when it is such a simple thing to ease the anxiety of the applicant, and get the desired drug screening accomplished.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

(Why?)

Published at Fri, 03 Mar 2017 00:03:16 +0000

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