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COLUMN LEGAL

Can Employers Ask About

Prescription Drug Use?

On the waterfront, it all depends.

By Mark Meeker

It is well established that workplace ter.’ [42 U.S.C.] § 12112(d)(3).” Connolly v. First Personal safety and productivity can be com- Bank, 623 F. Supp. 2d 928, 931 (N.D. III 2008).

promised, not just by the use of illicit The Americans with Disabilities Act of 1990 (ADA) pro- substances and alcohol, but also by the tects employees against being asked whether they are taking use of prescription drugs. Federal law, prescription drugs or medications, or about illnesses, mental however, imposes limits on employer conditions, or other current or past impairments. All cur- inquiries in this area both with respect rent employees, not just those with disabilities, are shielded to the affected job classi? cations and to some extent by the ADA’s requirement that employers’ the scope of the inquiry. limit disability-related inquiries and medical examinations

Meeker

Generally, an employer may not ask to those that are “job-related and consistent with business all employees what prescription medi- necessity.” A disability-related inquiry is one that is likely to cations they are taking because such an inquiry is not job- disclose information about a disability, including current or related and consistent with business necessity, according to past prescription drug use or monitoring that use.

Enforcement Guidance from the U.S. Equal Employment An inquiry is considered “job-related and consistent

Opportunities Commission (EEOC). Nor may employers with business necessity” if the employer reasonably be- ask applicants about their lawful drug use if doing so is lieves, based on objective evidence, that a medical condi- likely to reveal information about a disability. By contrast, tion will impair an employee’s ability to perform essential however, after an offer has been extended but before em- job functions or cause an employee to pose a direct threat. ployment has begun, “the employer may require a medi- In limited circumstances, however, it is job-related and cal examination and make an offer of employment con- consistent with business necessity to require employees in ditional on the results of such examination so long as (1) positions affecting public safety to report when they are all employees are subject to such inquiry; (2) information taking medication that may affect their ability to perform obtained is maintained on separate forms and in separate essential functions. Moreover, the ADA speci? cally pro- ? les and treated as con? dential; (3) the results of the ex- vides that entities operating under the U.S. Department of amination are ‘only used in accordance with this subchap- Transportation may test employees in safety-sensitive posi- ©Adobestock CREDIT Feng Yu

September 2017

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