The EEOC has no chill for your discriminatory prescription drug use and hiring policy

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Do you require potential hires to pass a drug test as a condition of employment?

If so, there are some limits as to what you can do.

For example, the Americans with Disabilities Act is the federal law that make it unlawful for employers to discriminate based on a disability. While nothing in the ADA interferes with an employer’s ability to test applicants for illegal drugs, a test that is designed to highlight prescription drug use could be unlawful.

Last week, the EEOC announced here that it had sued a car dealership because it allegedly rescinded a job offer based on a woman’s lawful prescription drug use:

According to EEOC’s lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identi­fied by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

Such alleged conduct violates Americans with Disabilities Act, which prohibits employers from making employment decisions based on an individual’s disability or need for reasonable accommoda­tion, and to make such accommodations absent undue hardship.

As discussed at our recent free webinar, “How to Navigate Alcoholism and Substance Abuse under the FMLA/ADA,” (listed to the replay here using the password Cigna1 when prompted), the EEOC’s guidance on medical examination and inquiries underscores the risks of inquiring into prescription medications:

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity.In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. 

There are times where safety considerations or other federal laws (e.g., Department of Transportation rules) will trump an employee’s otherwise lawful prescription drug use. Another notable exception is medical marijuana, where the ADA provides no support for employees.

However, as with most situations involving someone with a disability, a blanket workplace rule applied without individualized consideration is risky.

And often unlawful.

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