Hunton Retail Law Resource

As reported on the Hunton Employment & Labor Perspectives blog, the ongoing opioid epidemic is causing employers to consider the best ways to ensure a safe workplace, but companies should be careful when addressing employees’ prescription drug use. Recent court filings and settlements by the Equal Employment Opportunity Commission (“EEOC”) illustrate the potential pitfalls employers face when attempting to implement a drug-free workplace.

For example, the EEOC recently filed a lawsuit against a Texas painting company whom it alleges violated the Americans with Disabilities Act (“ADA”) when it terminated an employee who was taking methadone as part of a prescribed treatment program after he became dependent on prescribed opioid pain medication. On his first day on the job, the employee took a pre-employment drug and alcohol test. When he learned that the prescription medication he took caused the drug test to be “positive,” he provided a copy of his prescription and information about his treatment; however, the company terminated his employment. The EEOC alleges that this conduct violates the ADA, which prohibits discrimination against qualified individuals with disabilities.

In addition, the EEOC recently settled two cases involving employers’ actions related to prescription drug use. In one case, a school terminated a teacher on his first day of work after learning that he was on a prescription drug to treat dependency on opioids. The EEOC claimed that the school failed to conduct an individualized assessment to determine what, if any, impact the drug had on the teacher’s ability to perform his job and therefore violated the ADA. As part of the settlement, the company agreed to create an ADA-compliant procedure for conducting an individualized assessment of any employee who is enrolled in any form of alcohol, drug or illegal substance rehabilitation program in order to determine whether the individual can safely perform the essential functions of the position with or without reasonable accommodation.

In another case, the EEOC alleged an employer withdrew an applicant’s job offer for a cashier position at a casino based on a positive drug test for prescription medication, and maintained an unlawful policy requiring all employees to report if they were taking any prescription and nonprescription medication. As part of the settlement, the employer agreed to change its policy to require employees to only report prescription medications if the employer had a “reasonable suspicion” that the medication may be affecting performance.

So, what should an employer do to comply with the ADA?

The EEOC Enforcement Guidance addressing disability-related inquiries encompasses prescription drug medications. While not binding law, it provides that an employer should not generally:

• ask an employee whether s/he currently is taking any prescription drugs or medications;
• ask an employee whether s/he has taken any prescription drugs or medications in the past; or
• monitor an employee’s taking of prescription drugs or medications.

An exception, however, exists in limited circumstances affecting public safety.

Finally, if an employee discloses that s/he is taking a medication that can affect the safe performance of the job, the employer should not automatically bar the employee from performing the job based simply on the employee’s use of the medication. The employer should perform an individualized assessment of the employee to determine whether the individual can safely perform the essential functions of her/his position with or without reasonable accommodation.

While it may be necessary to obtain further information about the impact of the medication on the employee’s ability to perform the essential functions of the job with or without reasonable accommodations, the employer must be careful to tailor the request for information to these issues.