What you can and can’t do about prescription drug use at work

Posted September 23, 2016

By Katie Loehrke, PHR, editor, J. J. Keller & Associates

Advances in prescription drugs can be a positive factor for both employees and employers, since individuals who may have otherwise struggled to work are able to be productive in the workforce with the help of medication.

While prescription drug use can be quite beneficial for employees, employers still have concerns when employees are under the influence of medication in the workplace. For instance, could prescription drug use impact job performance in a negative way? Could it increase the incidence of safety-related accidents?

Employers would do well to remember that, while possible, such risks aren’t certain outcomes of prescription drug use, and that many employees take medication with no negative impact on their ability to safely and effectively perform their jobs.

Employers must also remember that the Americans with Disabilities Act (ADA) limits employers’ rights to make medical inquiries of employees and applicants. What follows are several relatively common questions employers have with regard to prescription drug use by employees.

Question: Can we require employees to report any medications they are taking?

Answer: Generally, no. Asking employees about prescription medications constitutes a medical inquiry under the ADA, in part because it may reveal information about an employee’s disability. Medical inquiries may be made of employees only if they are job related and consistent with business necessity.

To make a medical inquiry, the employer would need to be able to demonstrate that an employee’s inability or impaired ability to perform the essential functions of his or her job will result in a direct threat to him/herself or to others.

To show that a direct threat exists, the employer would need to show that there is a significant (and current) risk of substantial harm. The risk may not be based on speculation; it must be based on objective medical or other factual evidence regarding a particular individual. Even if the employer determines that a significant risk of substantial harm exists, it would need to consider whether the risk can be eliminated or reduced below the level of a direct threat with a reasonable accommodation.

While most employees’ prescription drug use wouldn’t create a direct threat, employees in positions affecting public safety may be more likely to meet that threshold. For instance, a police department could require armed police officers to report when they are taking medication that may affect their ability to use a firearm or perform other essential functions of their job.

Q: Can we ask about misuse or abuse of prescription drugs?

A: Misuse of prescription drugs is a valid concern for employers. The Mayo Clinic reports that almost 70 percent of Americans take at least one prescription medication. What’s more, in a recent survey by the National Institute on Drug Abuse (NIDA), nearly 20 percent of respondents over the age of 12 reported using prescription drugs in a non-medical manner at some point in their lifetime. Illegal drug use is not protected under the ADA, and that includes the illegal use of prescription drugs.

Though employers generally should not make any medical inquiries of applicants pre-offer under the ADA, asking about illicit drug use is permissible, even at this stage. Employers may ask if applicants have used drugs illegally (including prescription drugs), and may exclude individuals from consideration if they answer in the affirmative. Likewise, employers may ask questions of employees about illegal drug use and may impose discipline on employees who have participated in illegal behavior.

Q: What do we do if we suspect that prescription drug use is causing a performance or safety problem?

A: Since employers rarely know (based on objective evidence) that a performance or safety problem is related to prescription drug use, they should address the problem with the employee without guessing about potential causes. An employer should explain its concern to the employee and ask if there’s anything keeping the individual from meeting the standards expected by the employer. If, at that point, the employee indicates that prescription drug use is causing or contributing to the problem, the employer will need to consider whether a reasonable accommodation can be made to allow the employee to successfully perform the essential functions of his or her job.

The key to remember is this: While prescription drug use and abuse in the workplace is definitely an issue of which employers should remain aware, the simple potential for prescription drug use to cause safety or performance problems isn’t enough to allow employers to make medical inquiries or to take an adverse action against an employee.

About the author:

Katie Loehrke

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr and www.prospera.com. Click here for Katie’s LinkedIn profile.