By now you will be aware of the scourge of opioid abuse that’s swept the country over the past decade and the damage it is doing to individuals and families.
Overdoses from legal prescription drugs – mostly opioids and other strong pain relievers – last year surpassed overdoses from street drugs like heroin for the first time.
However, some employers are going too far in trying to prevent employees from taking certain medications while on the job and have as a result run afoul of the Equal Employment Opportunity Commission.
As you would enter an interactive process when trying to make accommodations for an employee’s disability, you must do the same if you have concerns about a worker taking prescription drugs for a medical condition.
Two recent lawsuits illustrate the issues that could spark action by the EEOC.
Refusing to hire after drug test
One case, filed in September 2016, concerns a woman who had her job offer by a casino rescinded after she had failed a pre-employment drug test. But the applicant was taking prescription medication for a back and neck impairment, which caused her to fail the test, the EEOC alleges.
Despite the applicant’s explanations and even offering to provide documentation, the casino still refused to hire her, according to the agency.
The EEOC alleges that the company violated the Americans with Disabilities Act (ADA) when refusing to hire the applicant, because she was taking lawful prescription drugs due to a disability.
The lawsuit also challenges the casino’s blanket policy requiring all employees, regardless of whether they work in safety-sensitive positions, to disclose their prescription or non-prescription drug use.
Fired for prescription drug use
The EEOC sued a medical center in Georgia for firing one of its doctors after learning that he was taking prescription narcotics to treat chronic pain for which he was undergoing treatment.
He was terminated despite offering to provide a letter from his own doctor explaining why he was taking the medication and receiving spinal injections. The medical center said he would be unable to perform his duties while taking the medications.
The EEOC alleges that the physician could have performed his job safely and competently, and that the medical center failed to enter into a dialogue with him, in violation of the ADA.
The Littler Mendelson law firm in a recent blog had the following tips for employers:
- If you suspect someone is taking prescription narcotics that are affecting their performance, you can have a talk with them. If they have a prescription, you may need to enter into an interactive process with them to try to find ways to accommodate them under the ADA.
- If they are taking pharmaceuticals for which they do not have a prescription, that is illegal drug use and you can impose discipline for violating your policy against illegal drug use.
- You can still conduct pre-employment drug tests legally and regulate abuse of drugs in the workplace. But make sure that you account for the need to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations.
- Avoid taking adverse actions when you have not gathered all of the facts.
- You cannot have a policy that requires all employees to divulge the prescription medications they are taking. However, there are exceptions when public safety and the safety of other employees is concerned.