The is a challenging topic as many times employers look to the drug testing program to determine if the employee is using prescribed medications or abusing prescribed medications. When an employee has a lawful prescription that explains the positive test result, the Medical Review Officer (MRO) will reverse the result to negative and report to the employer. Based on the employee’s job function and the particular prescribed medication, the MRO may indicate in the remarks on the drug test results: Safety Concern. This safety concern alerts the employer that perhaps a fitness for duty clearance is needed for the employee from the licensed physician prescribing the medication.
Can an employer ask employees what type of medication they are taking and why? It depends. It seems perfectly justifiable to want to know what medications an employee is taking, especially since safety-sensitive jobs and controlled substances make for one bad cocktail, right? Well, not exactly. The Americans with Disabilities Act (ADA) does not just protect disabled individuals, it also protects the privacy of medical information of applicants and employees, disabled or not.
The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining the exceptions to the medical inquiries’ limitations. The guidance states that in general, employers may not ask all employees about the prescription drugs they take. Employers must be able to demonstrate that asking employees about their prescription drug use is job-related (safety sensitive position) and consistent with business necessity. Employers need to consult with legal counsel about whether other occupations meet this exception to the law.
There are also exceptions pertaining to medical inquiries for occupations regulated by federal law. For example, CFR 382.213 of the Federal Motor Carrier Safety Act indicates that drivers in safety-sensitive positions may be required to disclose the use of controlled substances, though there are some exceptions to this rule. Similarly, the Federal Aviation Administration has issued guidance requiring pilots and other aircraft-related safety-sensitive positions to disclose prescribed medications.
Drug Free Workplace Policy
Company policies including drug free workplace policies typically address employee use of prescribed medications. Sample language in a company drug free workplace policy addressing use of prescribed medications might include:
Employees should report to work fit for duty and free of any adverse effects of illegal drugs or alcohol. This policy does not prohibit employees from the lawful use and possession of prescribed medications. Employees must, however, consult with their doctors about the medications’ effect on their fitness for duty and ability to work safely, and they must promptly disclose any work restrictions to their supervisor. Employees should not, however, disclose to [Company Name] underlying medical conditions unless directed to do so.