PEEKING INTO YOUR EMPLOYEES’ MEDICINE CABINETS
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It’s natural that you do not want employees operating equipment or engaging in potentially hazardous work while they are under the influence of drugs or medications. While many employers with safety-sensitive jobs have a zero-tolerance policy and test for illegal drugs, you may be worried about the effect a legitimately-prescribed medication may have on an employee’s ability to work safely. Many commonly-prescribed medications can cause drowsiness or disorientation as a side effect. So, can you ask your employees if they are taking prescription medications or require your employees to notify you if they are?
Generally, the answer is “No,” but there are some exceptions. The Americans with Disabilities Act (“ADA”) gives employees and job applicants the right to keep their medical information private, regardless of whether they are disabled. Asking what prescriptions an employee is taking qualifies as a medical inquiry under the ADA. You can make such an inquiry only if the inquiry is shown to be both job-related and consistent with business necessity; that is, you have reasonable belief that the employee’s job performance will be compromised by taking certain medications.
The Equal Employment Opportunity Commission (“EEOC”) oversees enforcement of the ADA. The EEOC advises employers to ask whether an employee’s use of prescription medications would present a safety risk to the employee or others. This test causes an employer’s right to ask an employee about their medications to rest on the nature of the particular job. There are only limited situations when a general inquiry into all employees’ use of medication can be shown to be necessary, and these involve employees in positions affecting public safety. For example, a police officer or construction worker could greatly risk their safety and the safety of others by performing their jobs while feeling the side effects of certain prescription medications. On the other hand, such side effects are much less likely to pose a safety risk in an office setting. Note, however, that even with these types of employers, the exception does not necessarily apply to all employees. In the police department context, for instance, the department could not require employees who are not armed to report their use of medication because it would be unlikely that these employees could pose a direct threat to the public as a result of any impairment the medication would cause. Relatedly, certain professional fields, such as aviation and commercial trucking, have their own laws which allow employers to ask employees about their prescription medications.
If you feel that you have a reasonable belief that your employee’s use of prescription medications will pose a safety threat, then it is within your rights to ask him or her about it. You must be prepared to explain how the use of medication would impact public safety, however. Indeed, you could face liability if you don’t ask an employee about their medications, and he or she injures someone on the job as a result of the medication’s side effects.