How to ask employees about their legal meds without being sued

A cautionary tale.

In a decision issued this week, a federal judge in Greensboro, North Carolina, ruled that an employer's policy requiring employees to disclose their legal prescription medications may have violated the Americans with Disabilities Act.

Loflin Fabrication, LLC, is a metal fabrication shop not far from me. Like all metal fabrication shops, it is not a place where you would want to be under the influence of anything -- legal or illegal. In addition to having random testing for illegal drugs, the company requires employees to disclose any legal prescription medications they may be taking. At least, I think that's what they require. 

In 2017, the company adopted a written drug policy, including this provision on the  disclosure of legal medications:

. . . you must:

TURN prescriptions in to HR so they can be on file before you start work. Any employee taking prescribed medications will be responsible for consulting the prescribing physician, pharmacist, or the warning labels to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees or company property, it is the employee's responsibility to notify your supervisor and take a leave of absence to avoid unsafe workplace practices. No employee is permitted to work while under the influence of a narcotic.

I know people hate lawyers, and I hate myself sometimes, but this policy is a good illustration of why employers need them -- er, us. First, it says that employees must turn in their prescriptions to HR. No exceptions. (So, if I'm a woman taking birth control pills or a man taking Viagra, I have to let HR keep my prescription "on file"?)

"That'll be the day!"

But then it says employees who are on medications that could affect their safe performance of the job must tell the supervisor and take a leave of absence. (I guess the employee just walks up to the supervisor and says, "Hey, boss, I'm going to take a leave of absence because I'm on painkillers for my back." And then the supervisor says, "OK. Later, dude.") And, if the drug is a narcotic -- what? Do you get to tell your supervisor that you're taking a leave of absence, like your co-worker who was on the unsafe meds? Are you fired? Are you allowed to work with accommodations? Does HR keep your prescription "on file"? Who knows?

Well, apparently, no one at the company could agree on what the policy meant, either. Some people testified that they thought it applied only to mind-altering substances. Other people testified that they thought all prescriptions had to be turned in to HR, and they had done so. According to the court, "employees have told the company about prescriptions to treat many different medical conditions, including attention deficit hyperactivity disorder, allergies, bacterial infections and skin conditions, depression, and seasonal affective disorder."

Skin conditions? I'm on prednisone for the poison ivy rash I got while clearing the underbrush in my back yard last weekend, and I have to provide HR with a copy of my prescription?

"I really have no idea what this policy means."

The court acknowledged that the workplace was dangerous and that it might be appropriate, for safety reasons, to require some disclosure about legal medications. But the policy (and employees' understanding of it) was arguably overbroad, so that claim will go to a jury.

Here's the kicker: The employee on whose behalf the EEOC was suing is also the employee who drafted this policy, and she was terminated because of a drug testing issue. The judge dismissed the EEOC's claim that the employee was terminated because of a disability. However, a claim that the employee was unlawfully terminated for failing to comply with the allegedly unlawful drug policy that she drafted will go forward.

If I were on that jury, I would find in favor of the company on all claims. The nerve of drafting a bad policy, failing to follow it, and then suing when you got fired for failing to follow it. But enough about me. How should an employer go about requiring employees to disclose their legal medications? Here are a few suggestions:

First, you do have a right to expect your employees to be of sound mind and unimpaired when they come to work, especially if their jobs are safety-sensitive. Illegal drugs can impair, but sometimes legal drugs can do so as well. Pre-employment and random testing should take care of the illegal drugs, but with legal drugs, the only way you'll be able to protect employees is to require that they  disclose any legal medications that could affect their ability to be safe while at work.

Keep your disclosure requirement as narrow as possible, while still allowing you to achieve your goals. When I'm drafting one of these "legal medications" policies, I usually word it this way: "You must notify Human Resources if you are taking any legal medication that could impair your ability to safely or competently perform your job." This makes it clear that the employer doesn't want to know about birth control pills, Viagra, or poison ivy drugs.

"Leaves of three, let it be." (The North Carolina state flower.)

Make it clear in the written policy that you have every intention of complying with your ADA obligations.
Something like this: "If you are taking this type of medication, the company will determine, in consultation with your health care provider, whether you can continue to perform your current job. If not, you will be temporarily removed from the safety-sensitive position and reassigned to another position or placed on a temporary leave of absence. When you are no longer taking the medication, you will be restored to your original position." I'd also include a statement in the policy that the information provided by the employee will be kept confidential and separate from the employee's personnel file, as required by the ADA.

Treat all legal medications the same, whether they are prescription or not. Some over-the-counter medications can have significant mind-altering effects, too. Not to mention alcohol and legal marijuana.

Apply this policy to all safety-sensitive positions, at least. This would include safety-sensitive positions, like machine operators, truck drivers, and outside sales reps who have to be on the road. But even non-safety-sensitive employees need to be clear-headed when they're at work, and they need to be able to perform their positions competently.

Finally, if -- despite all your best efforts -- employees turn in their Viagra prescriptions to you, GIVE THEM BACK.

"Too much information!"

Image Credits: From flickr, Creative Commons license: Frowning woman by David Johns, old men by Hamed Parham. Other images from Adobe Stock.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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