Watch What You Ask For – Prescription Medication
Kegler Brown E-mployment Alert September 30, 2009
The EEOC sued a company last month. That’s not news. What is interesting is that the EEOC’s lawsuit contends that the company’s policy that requires employees to disclose prescription drugs they use violated the disability law (ADA).
The suit arose after the company discovered that an employee had been using Vicodin while at work, leading ultimately to his discharge. The company policy required employees to report any prescription medication or over-the-counter drugs they use. The EEOC contends that the policy violates the disability law because the information sought is not strictly job-related and that disclosures are likely to reveal information about disabilities.
The EEOC has taken the position that only in limited circumstances would an employer have a legitimate need to know if an employee is using prescription medication. The EEOC defines a prohibited “disability-related inquiry” as including “asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications.” The EEOC prohibits these inquiries unless it is “job related and consistent with business necessity.” EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations, No. 915.002 (July 27, 2000).