Inquiries into an Employee’s Lawful Drug Use May Cost You
By Jerry P. Cline With soaring health care costs and workers’ compensation premiums, many employers have adopted policies designed to reduce the amount of drug and/or alcohol-related incidents in the workplace. Many of these policies require employee disclosures of lawful prescription drug and/or over-the-counter medication use while at work. But beware - while drug-free workplace policies are positive initiatives and have enumerable benefits, your policy could run afoul of the Americans with Disabilities Act (ADA) if not drafted properly, and may result in a disability discrimination lawsuit.
Under the ADA, the general rule is that an employer is forbidden to make inquiries of its employees that may reveal the employee’s disability, unless the inquiry is job-related and consistent with business necessity. Generally speaking, the employer may only inquire of an employee’s legal drug use if that drug use could make the employee a danger to himself or to others in performing the essential functions of his job. In that regard, I recently reviewed a client’s Drug Free Workplace Policy (DFWP) to ensure compliance with federal regulations. This policy required all employees to report their use of prescription and/or over-the-counter drugs, regardless of whether or not the use of these drugs raised any legitimate safety concerns. This policy, if implemented, would have been a clear violation of the ADA because the inquiry, in most cases, would have had no connection to any legitimate business necessity.
Of course, legal drug use by an employee may raise legitimate safety concerns. For example, it would be permissible for an employer to require a crane operator to report the use of prescription medication that may cause drowsiness. However, if this same crane operator uses aspirin or allergy medication that raises no legitimate safety concerns, the employee would not have to report this use to the employer because the inquiry would not be job-related or consistent with any business necessity.
So remember – when asking about an employee’s use of legal drugs, make sure you first ask yourself if the inquiry is job-related and consistent with business necessity. Narrow your inquiry only to medications that could make the employee a danger to himself or others in performing the essential functions of his job. Otherwise, it could cost you.
Jerry’s practice involves general employment relations law, discrimination litigation, and workers’ compensation. If you have any questions about employee drug policies or any other employment law issues, please do not hesitate to contact him at any time.
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