- May I ask an employee what prescription drugs he or she is taking?
- Generally no, because it is not job related or consistent with business necessity. In very limited circumstances, for example, with jobs affecting public safety—e.g. transportation workers, an employer can inquire about prescription medications. An employer may, however, ask whether an employee is engaged in the unlawful use (as distinguished from lawful use) of prescription drugs.
Furthermore, an employer’s drug policy violates the ADAAA if it prohibits the use of all legally prescribed controlled substances without a determination that such prohibition is job-related and consistent with business necessity. Meaning that individualized assessments must be made.
- What should an employer do after an employee discloses prescription drug use that may — or may not — affect the employee’s job performance?
- Employers should request that the employee provide a medical certification from his/her doctor regarding the effect of the medication on his/her ability to perform his/her essential job functions safely. The doctor should be provided with a list of the essential job functions.
In McFadden v. Washington Metropolitan Area Transit Authority, CV-12-940 (D.D.C. September 2, 2016), the court found that an employer was liable for terminating an employee who was legally prescribed Adderall to treat Attention Deficit Hyperactivity Disorder. McFadden was a bus mechanic in Washington D.C., subject to regulations of the Department of Transportation because his job required a Commercial Driver’s License (CDL). The Transit Authority, consistent with its own policy, prohibited McFadden from working as a mechanic while on Adderall because it was a banned substance, amphetamine. Under federal law, he needed a certification from his physician that his use of the amphetamine, a controlled substance, would not adversely affect his ability to operate a commercial motor vehicle.
The court denied the Transit Authority’s motion for summary judgment, holding that there were issues as to whether the Transit Authority requested that McFadden obtain certification from his physician to use Adderall while on duty and whether Adderall compromises safety.
Thus, even in highly regulated industries, employers must obtain individualized assessments when it comes to the use of prescription drugs. In non-regulated industries, when an employer learns of prescription drug use that may affect performance or safety, it should request medical certification. The certification should request information regarding the employee’s ability to perform the essential functions of his/her job. The employer and employee should then, if necessary, engage in the interactive process to determine if there is a reasonable accommodation available, which could mean a variation from a drug policy.