May an employer ask all employees what prescription medications they are taking?
Generally, the answer is no. Asking all employees about their use of prescription medications is not job related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.
Employers are seeing a rise in problems with the illegal use of prescription drugs in the workplace. Drug testing in the workplace was traditionally thought of as a way to determine whether an employee was taking street drugs such as marijuana, cocaine, or methamphetamines. Because prescription drugs are prescribed legally under physician supervision, whole new areas of complications arise. For instance, does an employee have a duty to notify the employer that he or she is taking certain medications?
In the usual circumstance, an employer is not affected if a physician believes that a prescription medication will contribute to an employee’s health and overall wellbeing. However, an employee’s use of prescription medication will occasionally affect an employer’s interest in maintaining a safe and efficient workplace.
When employees are lawfully taking prescription medications, a proper drug test will report the resutls as negative after medical review. However, the Medical Review Officer may note on the results that there is a safety concern. Employers should be aware that the law allows for the disciplinary action of employees who are taking prescription medications that affect the safe work environment.
It is the employee’s responsibility and obligation to determine, by consulting a physician if necessary, whether or not a legal drug he or she is taking may or will affect his/her ability to safely and efficiently perform his/her job duties. An employee whose impairment may affect job performance must contact his/her supervisor and attempt to find an appropriate alternative assignment. If none is available, the employee may take sick leave or be placed on a medical leave of absence (if available and the employee otherwise qualifies) or take other steps consistent with the advice of a physician. If an employee reports to work under the influence of prescription medication and, as a result, endangers himself/herself or others, the employee will be disciplined, up to and including termination.
Employers, however, cannot discriminate in their hiring and firing practices based on an individual’s use of prescription medication for legitimate medical purposes. Moreover, a drug test result may be considered personal health information and the use of the information may fall under HIPAA. As a result, there may be restrictions on how and whether such information can be shared.
Iquiring about Prescription Drug Use
Under the Americans with Disabilities Act (“ADA”), an employer may inquire about and test for prescription drug use as long as two conditions are satisfied: 1) the inquiry is related to the employee’s job; and 2) it is consistent with a business necessity. “Ensuring that the workplace is safe and secure” is a legitimate business necessity.
For example, if part of an employee’s job duties requires driving an automobile, then an employer needs to ensure that the employee is capable of driving safely to protect the general public and to guard the employer from potential liability. In such a case, a drug screen would be proper because it is related to the employee’s job of driving and necessary for the employer’s business purpose of promoting safety. If the employee is takeing legally prescribed drugs, the medical review officer will report the result as negative with a notation of a safety concern.
The employer may ask the employee about the potential of a safety concern. The employer may lawfully ask questions such as; “are you taking this medication under a lawful prescription?” and “are there any restrictions on the use of this drug such as do not drive or operate heavey machinery?” Based on the conversation, the employer may require that the employee see his or her physician and provide a fit for duty letter from the physician.www
.huddlestonbolen.com • Kevin A. Nelson, Responsible Attorney
Checking the Side Effects of the Prescribed Medication
Some medications can have adverse side effects on an individual; while others may not affect the user’s work abilities at all. Ideally, a medication would allow an employee to function more effectively on a daily basis. However, if the medication causes known side effects…those consequences could have a very adverse effect on the employee and those he or she may come in contact with or share the road with.
Based on a safety concern, it is imperative that an employer requesta further medical exam in order to make an assessment on how the employee’s prescription drug regime will affect the employee’s ability to function effectively and safely in his or her job. An employer’s drug policy violates the ADA if it prohibits the use of all legally prescribed controlled substances without a determination that such prohibition is job-related and consistent with business necessity.
If the employee is taking medication that does contain adverse side effects that could affect his job-related duties, then it may become necessary for the employer to take action.
It is critical for an employer to articulate a legitimate, nondiscriminatory reason for taking action. An employer cannot simply terminate an employee for taking prescription medication if the prescribed medication would not affect the employee’s job-related duties.
It is a good idea for employers to have a prescription drug use policy. Many policies require all employees who take prescription drugs that “may adversely affect judgment, coordination or the ability to perform assigned job duties” to notify their supervisors. Then, the supervisors will either allow the employee to remain at work or make other suitable arrangements. Case law shows that this type of policy is legal.
In 2008, the U.S. Court of Appeals for the Eighth Circuit held in favor of an employer who discharged an employee because the employee took medication that adversely affected his ability to perform his job safely. In that case, the employee had notified his supervisors that he was taking medication that can cause sleepiness and dizziness. However, the employer’s policy stated that an employee could not take prescription drugs that affected his cognitive abilities. The employee’s job duties required a significant amount of alertness and attention to detail. Because the employee’s act of taking prescription medication was contrary to the company policy, the employer had a legitimate reason for termination.
[Company Name] will also not allow any employee to perform their duties while taking prescribed drugs that are adversely affecting the employee’s ability to safely and effectively perform their job duties. Employees taking a prescribed medication must carry it in the container labeled by a licensed pharmacist or be prepared to produce this if asked. Employees taking prescribed medication, that may adversely affect the employee’s ability to safely and effectively perform their job duties; must notify their supervisors within twenty four hour of taking such medications.
It is the employee’s responsibility and obligation to determine, by consulting a physician if necessary, whether or not a legal drug he or she is taking may or will affect his/her ability to safely and efficiently perform his/her job duties. An employee whose impairment may affect job performance must contact his/her supervisor and attempt to find an appropriate alternative assignment. If none is available, the employee may take sick leave or be placed on a medical leave of absence (if available and the employee otherwise qualifies) or take other steps consistent with the advice of a physician. If an employee reports to work under the influence of prescription medication and, as a result, endangers himself/herself or others, the employee will be disciplined, up to and including termination. If the results of a drug test under the company drug free workplace program shows a safety concern, the employer may require that the employee see his or her physician and provide a fit for duty letter from the physician.