Most employers are rightly concerned about how the use of drugs, whether legal or illegal, can affect the ability of employees to perform their work. However, employers need to be careful about how they screen for and address prescription drug use because missteps can violate the Americans with Disabilities Act (“ADA”).
Pre-employment Prescription Drug Testing
The ADA prohibits employers from conducting medical examinations or making inquiries as to whether an applicant has a disability or the severity of a disability before an applicant is employed. Employers may ask about an applicant’s ability to perform job-related functions before hiring an applicant, but asking about prescription drug use, or testing for it, counts as a medical examination and, therefore, will likely violate the ADA.
Post-offer Prescription Drug Testing
After an employer has made an offer of employment, it may ask disability-related questions or require medical examinations, including by doing a drug test; however, any questions or testing must be required equally of all employees who begin work, and the results must not be used to discriminate against individuals with disabilities.
For example, in most cases an employer should not have a blanket policy that if an employee tests positive for certain prescription drugs, then the employer will rescind that person’s offer or terminate them. The employer must engage in an interactive process with the employee and address any concerns about the prescription use on a case-by-case basis.
If an employer wants to screen for prescription drug use, then it must show that its screening is job-related and consistent with business necessity. The employer could also show that an employee’s use of prescription drugs poses a direct threat to the health or safety of other individuals in the workplace. If employers do not follow these guidelines, then their screening of employees for prescription drug use violates the ADA, especially if an employee is properly using prescription drugs to treat a disability consistent with a doctor’s orders.
In the end, the primary purpose of the ADA is to prevent employers from discriminating against people with disabilities based on faulty assumptions or misconceptions about their disabilities. If an employer discovers that an applicant or employee is using prescription drugs in a way that raises concerns, then the employer shouldn’t simply assume that the individual is unfit for the position. The parties should discuss how the prescription drug use affects the individual and whether or not the individual can perform the essential functions of the job safely with or without reasonable accommodation.
In other words, employers should be careful not to jump to wrong conclusions about prescription drug use and should engage in an “interactive process” by communicating effectively with the applicant or employee about their use of prescription drugs.
Here are two links to recent cases involving prescription drug use and the ADA:
- Scottsdale Car Dealership to Pay $45,000 To Settle Disability Discrimination Lawsuit