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Cotinine testing may violate the American with Disabilities Act

Cotinine testing may violate the American with Disabilities Act (ADA), the ADA Amendments Act (ADAAA), and state laws


Melissa Tucker and Liliana Salazar
September, 2014

 
As employers proceed to implement outcomes-based, health-contingent wellness programs that provide rewards or impose premium differentials on nicotine users (tobacco and related products), it is important for them to understand the type of inquiries that are permitted and which inquiries may pose a risk for them under the ADA, the ADAAA, and state laws.
 
Employers have historically relied on affidavits, medical certifications, and health risk appraisals to determine if their employees are nicotine-free. Can employers also mandate that their employees undergo cotinine testing to determine if they are nicotine-free and are therefore eligible for rewards or lower health premiums under their wellness programs?
 

Cotinine and carbon monoxide testing

 
Cotinine is a naturally occurring chemical compound found in tobacco. When people use tobacco products, such as cigarettes, cigars, nicotine patches, or chewing tobacco, their livers break tobacco down into cotinine. Then, the cotinine is excreted into urine, blood, or saliva.1 Cotinine testing is used to determine if people are using tobacco products and if they are exposed to significant secondhand smoke, also known as passive smoking.2,3 Although cotinine testing may be popular in some areas, it is important to note that there are no specific industry standards to test for cotinine or determine the levels at which an individual is considered a nicotine user. Cotinine testing may be performed through blood tests, saliva swabs, and urine samples. However, recent studies have concluded that race may influence an individual’s ability to break down tobacco into nicotine. According to research performed by the American Society of Preventive Oncology, African American tobacco users may have higher serum cotinine levels than Mexican American or Caucasian tobacco users,4 challenging the validity of cotinine testing as an effective way to determine if an individual is a tobacco user.
 
Another test performed to assess if a person is a tobacco user is the carbon monoxide breath test. When an individual smokes tobacco, carbon monoxide is absorbed into the lungs. It then binds to hemoglobin in red blood cells to form carboxyhemoglobin. The aforementioned breath test measures carbon monoxide in parts per million, which is an indirect measure of carboxyhemoglobin, or the amount of carbon monoxide in the blood.5 Carbon monoxide breaks down in the body rather rapidly, so its measurement is sensitive only to recent smoking. Additionally, carbon monoxide may be detectable in the body due to environmental pollution or secondhand smoke,6 deeming the results of the test to be inconclusive and, in some cases, unreliable.
 

ADA, ADAAA, and cotinine testing

 
The United States Equal Employment Opportunity Commission (EEOC) states that medical inquiries or examinations are prohibited by the ADA unless they are job-related and consistent with business necessity.7 According to the ADA and the EEOC, for current employees, an employer can generally ask only medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation, or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition. A medical examination is deemed to be job-related and consistent with business necessity when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Based on the criteria defined above, cotinine testing would not be permitted under the ADA or the ADAAA as it is not deemed to be a job-related inquiry or constitute a business need. However, the ADA and the ADAAA do allow for certain inquiries and medical examinations as long as they are integral components of a voluntary wellness program.
 

ADA, ADAAA, and voluntary wellness programs

 
The EEOC has stated that although the ADA and the ADAAA prohibit medical examinations that are not job-related and consistent with business necessity, the acts do allow employers to conduct voluntary medical examinations and activities, including collecting voluntary medical histories, which are part of an employee health program, as long as the inquiry and examinations are acquired as part of a voluntary wellness program and records are kept confidential and separate from personnel records. Some of the permissible examinations under a voluntary wellness program include blood pressure screening, cholesterol testing, glaucoma testing, and cancer detection screening.
 

Voluntary wellness programs

 
In order for a wellness program to be deemed voluntary under the ADA and the ADAAA, it must meet two criteria: it must not mandate participation in the program and it must not penalize employees for not participating. The EEOC has stated that a financial reward may be provided as part of the wellness program, but it is unclear how large a reward is allowed before participation in the wellness program becomes involuntary, or if withholding the reward from nonparticipants constitutes a penalty, invalidating the voluntary nature of the wellness program. In addition, if the wellness program requires participants to meet certain health outcomes or to engage in certain activities in order to receive a reward or remain in the program, such as being a nonsmoker (nicotine-free), the program must provide a reasonable accommodation to those individuals who are unable to meet the outcomes or engage in specific activities due to a disability. Employers pursuing a tobacco-free wellness program must be aware that the ADA, the ADAAA, and the final regulations on wellness programs require an employer to provide individuals who have been identified as smokers (nicotine users) the opportunity to receive a reward or pay lower premiums for health coverage by meeting an alternative standard. An alternative standard to not smoking or being nicotine-free may include but not be limited to the following:
 
  • Employer offers employees the option of participating in a smoking cessation program, and pays for the cost of the program
  • Employer pays for the cost of medications that are associated with eliminating smoking or tobacco use
  • Employer offers and pays for counseling sessions to stop smoking or using tobacco products
 
Employers should exercise caution in designing their wellness programs, as mandating that employees undergo cotinine testing to become recipients of rewards or of lower employee contributions for health insurance premiums may impact the voluntary nature of the wellness program under the ACA, rendering that examination a violation of the ADA and the ADAAA. Employers should also note that there are state and federal laws protecting an individual’s privacy and requiring that medical examinations remain confidential, pursuant to the federal HIPAA Privacy and Security Rules, HITECH Act rules, and similar state laws.
 
It is important to note that the results of cotinine testing may be inconclusive or misleading and vary greatly depending on an individual’s ethnicity, making the use of these tests less reliable in determining an individual’s status as a non-tobacco user. Lastly, mandating that employees undergo cotinine testing may also give rise to litigation, depending on the state where the employee resides, based on state smokers’ rights laws.
 

States and smokers’ rights laws

 
Employers are not only required to review federal laws regarding nicotine use, such as the ADA, the ADAAA, and the final regulations on wellness programs, but also to familiarize themselves with state laws, as 29 states have enacted smoker-protection laws that prohibit employers from discriminating against off-duty smokers with respect to hiring, discharge, compensation, benefits, and other terms and conditions of employment. Other states, such as South Carolina, have enacted legislation prohibiting employers from subjecting an individual to nicotine testing (SC Code of Laws, Title 44, Ch. 95, Sec. 44-95-60).
 
1Avila-Tang, Erika et al. September 2012. Assessing secondhand smoke using biological markers – Nicotine and metabolites, Tobacco Control 2013;22:164–171.
2 Florescu, A; Ferrence, R; Einarson, T; Selby, P; Soldin, O; Koren, G. February 2009. Methods for quantification of exposure to cigarette smoking and environmental tobacco smoke: focus on developmental toxicology. Therapeutic Drug Monitoring 31 (1): 14–30.
3 Zhu, AZ et al. April 2013. The ability of plasma cotinine to predict nicotine and carcinogen exposure is altered by differences in CYP2A6: the influence of genetics, race, and sex. Cancer Epidemiology, Biomarkers & Prevention 22(4): 708–18.
4 Carabello, R;, Giovino G; Pechacek T; et al. 1998. Racial and ethnic differences in serum cotinine levels of cigarette smokers: Third National Health & Nutrition Examination Survey, 1998-1991. JAMA 280(2):135-139.
5 Bittoun, R. 2008. Carbon monoxide meter: The essential clinical tool-the “stethoscope” of smoking cessation. Journal of Smoking Cessation, 3(2), 69-70.
6 Marrone, G; Paupillai, M; Evans, R; Singleton, E; Heishman, S. January 2010. Breath carbon monoxide and semiquantitative saliva cotinine as biomarkers for smoking. Hum Psychopharmacol, 25(1): 80-83.
7 U.S. EEOC, U.S. Department of Justice: Civil Rights Division, American with Disabilities Act. Retrieved from ada.gov/qandaeng.htm on July 22, 2014.​​
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