Prescription/Legal Drug Policy Does Not Necessarily Result in Disability Discrimination


In some good news for employers, the U.S. Court of Appeals for the Third Circuit found that a relatively common policy prohibiting the misuse of prescription or over-the-counter (OTC) drugs did not discriminate against employees with disabilities.

In Lehenky v. Toshiba American Energy Syst. Corp., an employee who was using CBD oil to treat a disability tested positive for THC and was fired for using illegal drugs, in violation of the employer’s policy. (Although CBD oil is not supposed to contain THC over a certain threshold, because it is unregulated, some oils do contain sufficient levels of THC to trigger a positive test result.) She sued, alleging among other things that the employer’s drug policy discriminated against employees with disabilities.

Under the Americans with Disabilities Act (and other employment discrimination laws), a policy or practice that is neutral on its face can still violate the law by impacting those with a disability (or other legally protected characteristic) more severely than those without – i.e. it has a “disparate impact.” But an adverse impact does not necessarily result in a violation of the law – as long as the employer can show that the policy or practice is “job-related and consistent with business necessity,” and that there is no less discriminatory alternative available.

Here, the employer’s policy prohibited the improper use of prescription and OTC drugs, and required employees taking such drugs to be able to provide appropriate documentation to support the proper use. The inability to do so would result in a presumption of illegal use. The Third Circuit found that this requirement applied equally to employees with and without disabilities, and that there was nothing to suggest that employees without disabilities are more capable of producing the necessary documentation. Therefore, the policy did not adversely impact those with disabilities – a helpful finding for employers with similar policies.

As a side note, the policy also required employees to report their use of such drugs to Human Resources, and the failure to do so could result in disciplinary action. While the Third Circuit apparently had no issue with this requirement, employers should be aware that the Equal Employment Opportunity Commission takes a different perspective. According to the EEOC, asking all employees to disclose their prescription medications violates the ADA. While the EEOC’s medical inquiries guidance would allow employers to require only public safety employees to report prescription drug use that may pose a direct threat of harm, courts more generally have permitted employers to require reporting of such use where it may impact the employee’s ability to safely or effectively perform their job.