The ADA provides that no employer "shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112. Under the ADA, a "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . ." 42 U.S.C. § 12102(2). The complaint alleges that Buckley is a rehabilitated "alcohol/substance abuser." Based on this allegation, this Court found, in its previous opinion of December 22, 1995, that Buckley had adequately alleged a "disability" under the ADA. This Court also found, however, that the complaint failed to state a claim because it failed to allege that Buckley was discriminated against on the basis of that disability. Rather, the complaint alleged that he was terminated because he was unable to provide a urine sample due to a bladder condition that prevented him from urinating in public or on command. Because the complaint alleged in only the most conclusory fashion that his bladder condition was a disability under the ADA, the Court granted Buckley leave to replead to correct this deficiency.
In his amended complaint, Buckley concedes that his bladder condition is not a disability under the ADA. He alleges, however, that Con Edison's drug testing procedure is not reasonable, and therefore, violates the ADA. Section 12114(b) specifically states that "it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph 1 or 2 is no longer engaging in the illegal use of drugs." 42 U.S.C. § 12114(b). Buckley alleges that Con Edison's drug testing was not a reasonable policy or procedure because it required a urine sample within an alloted period of time.
Section 12114(b), however, merely makes clear that, although a rehabilitated drug abuser is not exempt from the term "qualified individual with a disability," drug testing by an employer does not violate the ADA. It does not provide that unreasonable drug testing is a per se violation of the ADA. Rather, § 12112 defines what conduct is prohibited under the ADA. Under § 12112, drug testing, like any other conduct, violates the ADA if it fails to accommodate reasonably "the known physical or mental limitations of an otherwise qualified individual with a disability," 42 U.S.C. § 12112(b)(5)(A), or otherwise "discriminate[s] against a qualified individual with a disability because of the disability," 42 U.S.C. § 12112(a), (b). Cf. Loder v. City of Glendale, 28 Cal. App. 4th 796, 34 Cal. Rptr. 2d 94, 103 (1994)("While it is true that . . . the Americans with Disabilities Act . . . [does not] prohibit drug testing, it is only reasonable to require that if drug testing is to be conducted, it may not be implemented in a manner which constitutes a de facto violation of the act.").
In his amended complaint, Buckley has not alleged that Con Edison's drug testing procedures unreasonably failed to accommodate his disability as an alcohol/substance abuser. Rather, he continues to allege that, in requiring a urine sample within a specified period of time, Con Edison's procedures unreasonably failed to accommodate his bladder condition. Because Buckley concedes that his bladder condition is not a disability under the ADA, however, Con Edison's failure to accommodate it cannot constitute a violation of the ADA.
In conclusion, defendant's motion to dismiss the complaint is granted. The Clerk of the Court is directed to close the case.
Dated: White Plains, N.Y.
July 31, 1996
Barrington D. Parker, Jr.