TOP TIP: Applicants and Prescription Drugs – What Employers Can and Should Do

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Many employers require applicants to take a post-offer/pre-employment drug test. In and of itself, a drug test is not considered a medical examination under the Americans with Disabilities Act – but it can reveal the use of prescription drugs, which will then trigger the ADA. Several recent cases illustrate what employers can do, and what they should not do, if an applicant tests positive for prescription drugs.

The Right Way. In EEOC v. Rogers Behavioral Health, the employer utilized a third-party provider to conduct drug screens of its applicants. The drug screen tests for illegal drugs, including prescription drugs taken without a valid prescription. The results are reviewed and verified by an independent Medical Review Officer (MRO). If the individual tests positive, the MRO contacts them to determine the reason for the positive test. If the individual has a valid prescription that explains the positive result, the result is changed to negative before it is provided to the employer.

The applicant here tested positive for Xanax, for which she said she had a prescription. Despite being informed multiple times that she needed to contact the MRO, the applicant failed to do so. Almost two weeks later, the employer rescinded the job offer. The EEOC sued, arguing that the employer erroneously and illegally regarded the applicant as engaging in the illegal use of drugs. The court, however, rejected the EEOC’s argument, finding that the employer only regarded her as someone who tested positive and who would not or could not provide proof (and not just her say-so) of a valid prescription – thus failing to comply with the employer’s pre-employment process. The court further noted that the current use of illegal drugs is not a covered disability under the ADA in any case.

The Wrong Way. Another case brought by the EEOC this month provides a stark contrast to the Rogers Behavioral Health case. As announced by the EEOC, it has brought suit against another employer under the ADA in a case also involving pre-employment drug testing. The applicant here is a veteran who suffers from post-traumatic stress disorder for which she takes a legally-prescribed drug. She informed her interviewer that she takes prescription medication that would cause her drug test to fail. After taking the test, she again told the employer that her prescription medications would cause a positive result. Apparently, the employer did not follow up on the prescription and instead revoked her job offer.

In a separate lawsuit announced by the EEOC, the EEOC is charging another employer with a different violation of the ADA related to a pre-employment medical exam. In that case, the EEOC alleges that the employer withdrew an offer of employment after the applicant revealed that he was taking prescription medication to treat his ADHD. The EEOC asserts that the employer failed to make any individual assessment of the applicant’s medication use or whether it would affect his ability to safety perform the job in question.

Lessons for Employers. The cases described above offer some tips for employers who engage in pre-employment drug testing. These include the following:

  • Establish a protocol for handling pre-employment drug testing results. Use of an MRO can be useful in establishing a boundary between the employer and confidential medical information, and to ensure consistency and impartiality.
  • If an applicant tests positive for a substance contained in prescription medication, the employer should determine whether the applicant has a valid prescription.
  • If an applicant says that they have a prescription for medication that will cause a positive result, it is important to verify that they do, in fact, have such a prescription.
  • If the employee has a valid prescription, their positive test must not automatically be used to disqualify them from employment. Rather, the use of a legally-prescribed drug is disqualifying only if it will interfere with the individual’s ability to safely and effectively perform the essential functions of the job for which they are being hired, or such use is prohibited by law, regulation (e.g. Department of Transportation regulations) or federal contract.
  • If an applicant cannot or will not provide proof of a valid prescription, the employer may then disqualify the applicant from employment – not because of illegal drug use, but because they did not comply with the pre-employment protocol.