Can Employers Ask Employees About Prescription Drug Use?

According to “Occupational Health & Safety” magazine, studies show that “Employees who abuse prescription drugs are two to five times more likely to take unexcused absences, be late for work, be injured or violent at work, file workers’ compensation claims, and quit or be fired within one year of employment.”

For these reasons, you may be tempted to ask your employees whether they are taking prescription drugs. However, you should tread carefully.

Can you ask employees about prescription drug use?

Under the American with Disabilities Act (ADA), an employer can ask an employee about prescription drug use only when the inquiry is job related and consistent with business necessity.

The Equal Employment Opportunity Commission (EEOC) says that asking all employees whether they use prescription drugs is hardly ever job related or consistent with business necessity. But in limited cases, an employer might be able to prove that requiring employees to disclose their prescription drug use is job related and consistent with business necessity.

The EEOC says, “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.”

Per the website of the law firm Holland & Hart, employees in safety-sensitive positions — such as police officers, drivers and heavy-equipment operators — may be required to disclose prescription drug use. However, employees in roles that do not “face a significant job-related safety risk associated with the side effects of prescription medications should not be asked about their use of those drugs.”

These low-risk positions include administrative employees such as accountants, human resources professionals, administrative assistants, information technology professionals and most management-level employees.

The EEOC offers the following examples:

• Armed officers in a police department could be required to report when they are taking prescription drugs that might impact their ability to operate a firearm or carry out their essential job duties.
• Airline pilots could be required to report any prescription medications they are taking that might hinder their ability to fly an airplane.
• Administrative-only employees in a fire department could not be required to disclose their prescription drug use because it’s unlikely that these employees would be a direct threat if they are unable to perform their essential job duties.

Keep in mind that the ADA does not allow employers to ask job applicants about prescription drug use prior to making a job offer. After a job offer has been made and before the employment begins, you can ask about prescription drug use only if all newly hired employees in the same job category are asked the same questions.

After the employment begins, you can ask employees about prescription drug use only if the inquiry is job related and consistent with business necessity — such as when the side effects of the prescription drug directly impacts the employee’s job function.

In general, employers should confer with legal counsel when drafting policies on employee disclosure of prescription drug use.