TOP TIP: Requiring Disclosure of Legally Prescribed Medications May Violate the ADA
March 31, 2017
As the U.S. Court of Appeals for the 10th Circuit recently reminded us, an employer’s general requirement that employees disclose their use of legally prescribed medications could violate the Americans with Disabilities Act.
The Americans with Disabilities Act limits an employer’s ability to make medical inquiries to those that are job-related and consistent with business necessity. In its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, the Equal Employment Opportunity Commission specifically addresses inquiries about prescription drug use and states that:
Disability-related inquiries may include the following:… 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 goes on to provide the following question and answer:
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.
The EEOC further states as follows
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.
Although this language suggests that the EEOC would limit prescription medication disclosures to public safety employers only, both the EEOC Guidance and the ADA are silent on the specific issue of when and if private employers may make prescription medication inquiries.
In accordance with its Guidance, the EEOC has consistently challenged employer policies that generally require employees to disclose all prescription medication use. Courts have similarly found such general policies to violate the ADA – like the 10th Circuit in the recent case of Williams v. FedEx Corporate Services – in that they are not job-related and consistent with business necessity. After all, many people take prescription medications that do not impact their ability to perform the essential functions of their job.
But if the prescription medication affects the employee’s ability to perform the essential functions safely or in an acceptable manner, then requiring the employee to disclose the use of such medication would likely be both job-related and consistent with business necessity.
If such a disclosure is made, the employer must react in a thoughtful way in order to avoid other violations of the ADA. The employer should not automatically bar the employee from performing the job based simply on the employee’s use of the medication. Rather, it may be wise or even necessary to obtain further medical information about the actual impact of the medication on the employee’s ability to perform the essential functions of the job and/or whether there are reasonable accommodations that may be provided to enable him to do so. And the employer must be careful to tailor the request for information to these issues – it could be a violation of the ADA to seek information about the underlying condition for which the employee is taking the medication, since that information may not be relevant as to whether the employee is capable of performing the essential functions of the job, with or without reasonable accommodation.