Tuesday, September 11, 2012

Testing employees for legally prescribes medications must be done carefully

file000462894090 A recent settlement announced by the EEOC points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the ADA.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

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. 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.

For example, 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. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. 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.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.