Be Careful Asking About Employees’ (Non)Prescription Drug Use

By Fiona W. Ong - Shawe & Rosenthal LLP

December 14, 2017

Many employers have drug-free workplace policies that require employees to disclose if they are taking prescription (and perhaps over-the-counter drugs) that could affect their ability to perform the essential functions of their job safely and/or effectively. This requirement seems pretty sensible, right? But according to the Equal Employment Opportunity Commission, it violates the Americans with Disabilities Act!

The ADA limits an employer’s ability to make medical inquiries to those that are job-related and consistent with business necessity. In its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, the Equal Employment Opportunity Commission specifically addresses inquiries about prescription drug use and states that:

Disability-related inquiries may include the following:… asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications;…

The EEOC goes on to provide the following question and answer (emphasis added):

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. 

The EEOC further states as follows (emphasis added):

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. 

Although this language suggests that the EEOC would limit prescription medication disclosures to public safety employers only, both the EEOC Guidance and the ADA are silent on the specific issue of when and if private employers may make prescription (or even over-the-counter) medication inquiries.

In accordance with its Guidance, the EEOC has consistently challenged employer policies that generally require employees to disclose all prescription medication use. Courts have similarly found such general policies to violate the ADA – like the 10th Circuit in the 2017 case of Williams v. FedEx Corporate Services – in that they are not job-related and consistent with business necessity. After all, many people take prescription medications that do not impact their ability to perform the essential functions of their job.

But if the prescription medication affects the employee’s ability to perform the essential functions safely and effectively, then one would think that requiring the employee to disclose the use of such medication under such circumstances would likely be both job-related and consistent with business necessity, right? Well, apparently, the EEOC thinks not.

In EEOC v. Oncor Electric Delivery Co., the EEOC contends that an employer’s policy requiring employees’ disclosure of medications (both prescription and over-the-counter) “that could affect your ability to safely perform your essential job functions and possible side effects that could affect your job performance” violates the ADA. The EEOC’s focus seems to be on the “job performance” aspect, since it states, “nearly every medication, prescription and non-prescription, has potential side effects that could affect the taker of the medication. Ibuprofen, according to the manufacturer of Advil, could cause asthma, shock, heart attack, heart failure and stroke, each of which could affect an employee’s job performance.” (Um, ok).

Now I think the EEOC is being pretty disingenuous about this, since it should be pretty clear that there’s a difference between common side effects (like drowsiness for many prescription-strength painkillers) and unlikely, rare side effects (like Advil causing asthma, shock, heart attack, heart failure and stroke!). Obviously, the employer is not worried about possible heart attack from Advil, but may be legitimately worried about drowsiness being caused by prescription-strength painkillers. (Note that this case has not yet been decided by the court – it’s possible the EEOC’s overblown position could be rejected).

And while potential negative impacts on job performance may not be, in the EEOC’s view, job-related and consistent with business necessity, I believe that a stronger argument may be made for safety issues. An employer can wait until job performance is affected to address that concern, but it should not have to wait until an accident happens to address a safety concern!

Now, if an employee discloses that he is taking a medication that can affect the safe performance of the job, the employer must react in a thoughtful way in order to avoid other violations of the ADA. The employer should not automatically bar the employee from performing the job based simply on the employee’s use of the medication. Rather, it may be wise or even necessary to obtain further medical information about the actual impact of the medication on the employee’s ability to perform the essential functions of the job and/or whether there are reasonable accommodations that may be provided to enable him to do so. And the employer must be careful to tailor the request for information to these issues – it could be a violation of the ADA to seek information about the underlying condition for which the employee is taking the medication, since that information may not be relevant as to whether the employee is capable of performing the essential functions of the job, with or without reasonable accommodation.

Well, that should give you a headache. But be careful of that Advil – after all, it could give you a stroke!