HR MATTERS E-TIPS
THIS WEEK’S E-TIP: ADA & Prescription Drug Use at Work Q&A
 Published by Personnel Policy Service, Inc.
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THIS WEEK’S E-TIP: ADA & Prescription Drug Use at Work Q&A

Can you require employees to report when they are using over-the-
counter and legal prescription drugs? Find out what the ADA says about
this policy.
 
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Please note that we will not publish HR Matters E-Tips next week. Our
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joyous holiday season and a very happy new year.
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THIS WEEK’S E-TIP: ADA & Prescription Drug Use at Work Q&A

Q: In our drug and alcohol policy, we require employees to notify
HR if they are using any legal prescription or over-the counter drugs.
Our concern is that the drugs may impair their ability to perform their
jobs. Is this policy okay? (Download free Drugs, Alcohol, and Narcotics
model policy.)

A: Your policy requiring employees to report all legal drug use may
be too broad and most likely violates the Americans with Disabilities Act
(ADA).

The ADA specifically limits what medical inquiries you can make of
current employees to those that are job-related and consistent with
business necessity. According to the Equal Employment Opportunity
Commission (EEOC) regulations and guidances, a medical inquiry or
examination of an employee meets this business necessity standard
when:

1. An employee is having difficulty performing the job effectively,
such as when the employee falls asleep on the job, is absent
excessively, or experiences a decline in the quantity or quality of work;

2. An employee is injured or becomes ill and the employee’s ability
to perform the essential functions of the job is in question;

3. An employee requests an accommodation for an alleged
disability;

4. The employer reasonably believes that an employee’s medical
condition will cause the employee to pose a direct threat;

5. The employer receives information from a credible third party
that an employee has, or the employer observes symptoms indicating an
employee may have, a medical condition that will impair his ability to
perform the essential job duties or will pose a direct threat; or

6. The inquiry or examination is required by law, such as medical
examinations required by OSHA or the Department of Transportation
regulations governing interstate bus and truck drivers, railroad engineers,
and airline pilots.
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A requirement that employees report all use of legal drugs generally
does not meet this standard. For example, in Roe v. Cheyenne Mtn.
Conference Resort, 124 F.3d 1221 (10th Cir. 1997), the Tenth Circuit
agreed that the employer’s policy requiring employees to report all drugs
present in their body and prohibiting the use of prescription drugs unless
reported to and approved by a supervisor was not job-related and
violated the ADA.

A modified policy that requires employees to report legal drug use only
when it affects their job performance likely would conform to the ADA’s
requirements. Most legal experts agree that requiring employees to
report legal drug use when it may affect their ability to perform their jobs
safely and effectively meets the ADA’s restrictions.

So, for example, your Editors recommend implementing the following policy
requirement: “Employees who need to use prescription or
nonprescription legal drugs while at work must report this requirement to
the Human Resources Department if the use might impair their ability to
perform the job safely and effectively. Depending on the circumstances,
employees may be reassigned, prohibited from performing certain tasks,
or prohibited from working if they are determined to be unable to perform
their jobs safely and properly while taking the prescription or
nonprescription legal drugs.” (Download free Medical Procedures model
policy.)

You also should be aware, however, that the EEOC takes a more limited
approach to reporting legal drug use. Its guidance indicates that you
may ask employees in “public safety” positions to disclose when they are
using prescription drugs only if the use would affect or impair their ability
to perform their jobs. In addition, you must be able to show that the
employee’s inability or impaired ability will result in a direct threat. The
EEOC’s guidance does not define the term “public safety” but gives
examples involving armed police officers and airline pilots.

This interpretation leaves open the question whether employers may ask
about legal drugs for other safety risks that do not involve the public,
such as when employees who operate machinery may endanger
coworkers or themselves by taking certain prescription drugs while
working. In addition, the guidance seems to preclude questions about
legal drug use that affects productivity.

But, this EEOC guidance does not have the same force as the ADA
statute or regulations, which do not specifically limit questions on legal
drug use to public safety positions, and courts may choose not to follow
it. Therefore, given the unsettled nature of the underlying issues, you
should consult legal counsel for further guidance before requiring
employees to report legal drug use.
 
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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find model policy language prohibiting legal drug use at work in
limited circumstances in Medical Procedures, Chapter 203, Comment
(5). For information on medical exams and reporting legal drug use, see
Medical Procedures, Chapter 203, note 10.

Not a subscriber? If you would like to order one of our policy chapters,
go to: http://www.hrpolicyanswers.com.

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