Last updated: May 13, 2024
A Drug-free Workplace and EEOC (Lessons from our backyard)
One doesn’t have to be a supervisor or manager for long to realize the exposure a company has to discrimination charges every which way you turn. A knowledgeable HR person is invaluable to protect against this exposure.
According to the EEOC, our home state of Tennessee had 3221 reported charges in 2014 which ranks in the Top 10 of all states. They rank only behind California, New York, Texas, Florida and four other states.
Why is this important? Tennessee also has one of the highest number of opioid prescriptions across America. This combination of EEOC charges along with medical prescriptions creates a high level of exposure for any business, especially those in Tennessee. To help mitigate this risk, it is imperative for businesses to have an updated employee handbook (including a drug & alcohol policy) and one that is compliant with state and federal regulations.
Is it permissible to ask employees about prescriptions and other medical questions?
What does the EEOC say about pre-employment inquiries and medical questions?
The ADA places restrictions on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.
An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam.
Once a person is hired and has started work, an employer generally can only ask 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 has reason to believe an employee would not be able to perform a job successfully or safely because of a medical condition.
The law also requires that the employers keep all medical records and information confidential and in separate medical files.
We frequently have questions from business owners, safety directors and human resource professionals.
1. What’s the harm in asking applicants or employees about medications they are currently taking?
2. Do we really need an Medical Review Officer (MRO)? Why can’t we verify the prescriptions?
3. Is our policy compliant with state and federal guidelines?
These are excellent questions and you need to know the answers. If you’re not careful, you may end up paying a big price like an auto manufacturer did in our own backyard.
Here is a press release that was put out by the EEOC in September 2012:
According to the EEOC’s suit (Civil Action No. 1:09-cv-00059), filed in the U.S. District Court for the Middle District of Tennessee, Dura Automotive Systems, Inc. tested all of its Lawrenceburg, Tenn., plant employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA. Five of the drugs tested for were illegal controlled substances, the EEOC said, but the other seven were legal medications that were lawfully prescribed for the individuals taking them.
Further, the EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications, and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications were affecting the employees’ job performances. According to the EEOC, Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications. Moreover, Dura conducted the drug tests in such a manner as to disclose to its entire work force the identities of those who tested positive.
All this alleged conduct violates various provisions of the ADA, the EEOC charged. The EEOC filed suit after first attempting to reach a voluntary settlement through its conciliation process.
Besides the monetary settlement of $750,000, the four-year consent decree settling the lawsuit includes terms that can be read by clicking here:
“This agency will continue to enforce the ADA’s prohibitions against illegal medical inquiries and examinations of employees where they are not job-related and consistent with business necessity,” said Faye A. Williams, the EEOC’s regional attorney for the Memphis District. “The EEOC’s Guidance on Disability-Related Inquiries and Medical Examination of Employees provides that asking an employee whether he or she is currently taking any prescription medications may be considered a medical inquiry.”
What are the lessons we can learn from this lawsuit?
Lesson #1 – While you can ask employees to report prescriptions that may prevent them from doing their job safely, you should avoid asking about prescriptions at any other time. The expectations should be addressed in your substance abuse policy.
Lesson #2 — An MRO should always be used to verify prescriptions for drugs identified in drug testing. The MRO is a licensed physician and helps protect you from knowing to much information about the employee’s medical condition.
Lesson #3 – Avoid having any procedures or policies that make it obvious to other employees (other than direct supervisor, HR, etc.) that you are verifying prescriptions. This information must be kept confidential.
Lesson #4 – Keep your policies current with federal and state regulations. Tennessee’s drug free workplace follows many of the federal guidelines. Have someone who is professionally trained review your policy to identify any potential pitfalls or legal concerns.
Drug testing programs are extremely beneficial and help protect the safety of your employees. The EEOC can be a thorn in the side of a business but they do exist to help protect employees from discrimination. To help protect your company against costly penalties and judgments, make sure you have sound policies and procedures in place. Call us today if you would like a free review of your drug & alcohol policy and processes.