Employers often have policies and procedures (frequently included in a drug testing policy) that require their employees to disclose the lawful use of prescription drugs (i.e., per the advice and prescription of a licensed physician) that could impair job performance. According to the Equal Employment Opportunity Commission, such policies may violate the Americans with Disabilities Act of 1990 (ADA) or the guidelines issued by the Commission. The EEOC has recently taken enforcement actions against employers on this issue, and employers should be aware of the hazards when requiring employees to disclose the use of prescription drugs.

Background 

The ADA prohibits employers from making disability-related inquiries of applicants and employees, unless the inquiry is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A). A disability-related inquiry could include a mandatory disclosure or conversation with an employee concerning prescription drugs that the employee is taking. It has long been the law in states that are within the jurisdiction of the Tenth Circuit Court of Appeals (Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming) that a broad policy requiring all employees to disclose all prescription drug use violates the ADA. While this outer boundary of what is prohibited is clear, everything short of that is not so clear.

The EEOC’s “guidance”

The EEOC is charged with interpreting and enforcing the ADA. Since at least 2000 when it published its “EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA),” the Commission has taken the position that policies requiring blanket disclosure of prescription medications are unlawful under the ADA. In other words, employers cannot ask “all employees” to disclose what prescription medications they are taking.

However, the guidance states that “[i]n 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.”

The EEOC appears to have a three-part test to determine when an employer can require its employees to disclose prescription medications. To require disclosure, each of the three elements must be established:

1. the employer must be one that affects public safety;
2. the employee must be in a position affecting public safety; and
3. the nature of the medication required to be reported must be one that affects the employee’s ability to perform their essential functions, resulting in a direct threat.

As to the first part of the EEOC approach, the guidance specifically states “certain employers” can demonstrate that such inquiries are permissible. In other words, under the Commission’s approach, law firms, accounting firms, and department stores may be unable to make such inquiries of their employees.

The second part of the test provides that these “certain” employers may be able to “require employees in positions affecting public safety to report” certain medications. The guidance expressly states, “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.”

For the last part of the EEOC’s test, only those medications that could affect the employee’s ability to perform their essential functions (undoubtedly, those related to public safety) and result in a direct threat should be the subject of inquiry. Examples provided by the agency of where inquiries/disclosures can be required include: 1) “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”; 2) “an airline could require its pilots to report when they are taking any medications that may impair their ability to fly.”

Enforcement actions

While the guidance is not necessarily “the law,” the EEOC’s interpretation is significant, and the Commission has the ability to enforce its interpretation of the law on employers until a court definitively sets aside the guidance. Enforcement actions by the EEOC against employers may result in monetary settlements (that are well publicized by the Commission), policy changes, and training.

In February 2012, the EEOC sued Product Fabricators, Inc., a Pine City, Minnesota manufacturer, claiming the company fired an employee because he was taking a prescribed narcotic medication for back pain. Significantly, the EEOC said that Product Fabricators required all employees to report whether they were taking medications regardless of the circumstances. The court approved a consent decree where Product Fabricators agreed to pay $40,000 and also agreed to ongoing training, reporting and monitoring by the EEOC.

In September 2012, the EEOC sued Dura Automotive Systems, Inc., a Michigan-based automotive parts company, claiming, in pertinent part, 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. The court approved a four-year consent decree requiring, among other things, the payment of $750,000 and the agreement to provide manager training.

In October 2012, the EEOC settled a case against New Hanover Regional Medical Center for $146,000 as a result of the agency’s allegation that the medical center violated the ADA by prohibiting employees from working if they were taking legally prescribed narcotic medications. As part of its settlement, the medical center was required to provide annual training to managers and supervisors concerning the ADA and provide periodic reports to the EEOC.

More recently, on September 26, 2014, the EEOC filed suit against Helmerich & Payne International Drilling Company in Tulsa federal court charging that the company violated Francisco Salinas’ rights under the ADA by requiring him to disclose “medications that could cause impaired job performance.” Specifically, the EEOC claims that the policy required Salinas, who is alleged to have a chronic and permanent back injury, to self-disclose that he was taking prescribed medication (in this case, Valium and Hydrocodone) to management and barred him from working while taking such medication. In its lawsuit, the EEOC seeks, among other things, a monetary award for Salinas and an order prohibiting such policies for being used on a continuing basis. One could presume that Salinas worked in oil and gas drilling operations that could injure or kill himself or others if handled improperly. Should the EEOC convince the court that employers may not make prescription drug inquiries of employees working around drilling rigs (or in the industry as a whole), it could prevent many employers from taking steps designed to protect employees’ safety. Employers should stay tuned to this case.

Next steps for employers

Employers should take the following action:

• Train human resources professionals and supervisors regarding employees’ rights and employers’ obligations under the Americans with Disabilities Act and other state and federal laws that provide protection to employees, specifically in the area of prescription drugs; and
• Review, and if necessary revise, handbooks, policies and procedures pertaining to the mandatory disclosure of prescription drug use.