Last updated: September 21, 2020
If you’re in HR, you know how quickly people can pull the trigger to sue you, even if you’ve done nothing wrong…and you’re stuck spending valuable time and energy defending yourself and your company. I want to make sure you are crystal clear on the common ADA mistakes when administering your drug and alcohol testing programs.
First, you should never ask your employee to give you, the employer, a list of their medications before you receive lab results. It is s violation of the ADA to ask an employee about their medications when you do not have a specific business reason for doing so. The ADA basically says that you cannot require an employee to share their disabilities with you, unless you have a business reason to know.
You can ask them about their prescriptions after you receive a positive test result and you want to see if the medication could provide a legitimate reason for the lab result. For this reason, I always suggest you use a Medical Review Officer (MRO) for every positive test result. The MRO is a licensed physician who is specifically trained to result drug tests and he/she will also know if a specific medication can explain a lab result. One other important “exception” to note is that it is acceptable to ask your employees to report any medication they are taking that might impair their ability to do their job.
Second, you cannot refuse to hire or promote someone based on past addictions. For example, if you have an employee who tested positive on a drug test, but you gave them a second chance and the employee got treatment for their problem, you may not use their past addiction history as a reason to not promote them to a higher position. You may use specific behaviors as a reason, but not the diagnosis of alcoholism or drug addiction.
Third, reasonable accommodations within the ADA does allow for time off, flex time, and/or working from home. The employee has to request the time off and they also have to give notice. So, if you have an employee who misses a lot of work without notice while they are seeking treatment, those behaviors are not protected under the ADA. Additionally, if you ever do offer an alternative work arrangement for any of your employees who have a disability including past addictions, it’s really important that you set very specific guidelines and expectations so that you follow those same guidelines every time. Often times, employers are too casual about the parameters of their alternative work agreement and when the employee starts abusing the agreement, they don’t have a way to follow up on what both parties had expected.
Last, you should never offer an employee an unsolicited “reasonable accommodation”. For example, if you have a guy that you know went off to rehab for 30 days, he then returns to work… you DO NOT want to take stuff off his plate to make his life less stressful or whatever your intention. All “reasonable accommodations” have to be requested by the employee. If you, the employer offer up an accommodation that the employee does not ask for, you could be considered to be discriminating.
The scary part about the ADA is that if you are ever in the wrong, as an employer, courts have the authority to rule against you to compensate for damages including punitive damages. So, if you do violate the ADA, the penalty put upon you can be without limits.