Do Employers Know the Medictions You Take

A cautionary tale.

In a conclusion issued this week, a federal estimate in Greensboro, Due north Carolina, ruled that an employer's policy requiring employees to disembalm their legal prescription medications may have violated the Americans with Disabilities Act.

Loflin Fabrication, LLC, is a metallic 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 annihilation -- legal or illegal. In addition to having random testing for illegal drugs, the company requires employees to disembalm any legal prescription medications they may be taking. At least, I think that's what they crave.

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 tin be on file before you start piece of work. Any employee taking prescribed medications will exist responsible for consulting the prescribing dr., pharmacist, or the warning labels to ascertain whether the medication may interfere with safe performance of his/her chore. If the use of a medication could compromise the safety of the employee, fellow employees or company property, it is the employee'south responsibility to notify your supervisor and take a go out of absence to avoid dangerous workplace practices. No employee is permitted to work while nether the influence of a narcotic.

I know people hate lawyers, and I hate myself sometimes, only this policy is a proficient illustration of why employers demand them -- er, us. First, it says that employees must turn in their prescriptions to HR. No exceptions. (So, if I'm a adult female taking nascence control pills or a homo 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 operation of the task must tell the supervisor and take a get out of absence. (I guess the employee just walks upwardly to the supervisor and says, "Hey, dominate, I'm going to take a leave of absenteeism because I'one thousand on painkillers for my dorsum." And so the supervisor says, "OK. Later, dude.") And, if the drug is a narcotic -- what? Practise you get to tell your supervisor that you're taking a exit of absence, like your co-worker who was on the unsafe meds? Are you fired? Are y'all allowed to piece of work with accommodations? Does Hr go along your prescription "on file"? Who knows?

Well, apparently, no ane at the visitor could agree on what the policy meant, either. Some people testified that they thought information technology applied only to mind-altering substances. Other people testified that they thought all prescriptions had to be turned in to Hour, and they had done then. According to the court, "employees have told the company nearly prescriptions to treat many dissimilar medical atmospheric condition, including attending deficit hyperactivity disorder, allergies, bacterial infections and skin weather condition, low, and seasonal affective disorder."

Peel conditions? I'chiliad on prednisone for the toxicant ivy rash I got while immigration the underbrush in my back thousand concluding weekend, and I accept to provide 60 minutes 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 crave some disclosure well-nigh legal medications. Only the policy (and employees' understanding of information technology) 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 too the employee who drafted this policy, and she was terminated because of a drug testing effect. The guess dismissed the EEOC's claim that the employee was terminated because of a inability. Nevertheless, a claim that the employee was unlawfully terminated for declining to comply with the allegedly unlawful drug policy that she drafted volition go forrad.

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, yous practise have a right to await 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, only sometimes legal drugs can practise so as well. Pre-employment and random testing should take care of the illegal drugs, simply with legal drugs, the just mode you lot'll be able to protect employees is to require that they disclose whatsoever legal medications that could bear on their ability to exist safe while at work.

Keep your disclosure requirement as narrow equally possible, while notwithstanding allowing yous to achieve your goals. When I'm drafting one of these "legal medications" policies, I usually give-and-take information technology this way: "You lot 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 desire to know near birth command pills, Viagra, or poisonous substance ivy drugs.

"Leaves of iii, allow it be." (The N Carolina country flower.)

Make it clear in the written policy that yous take every intention of complying with your ADA obligations. Something like this: "If you are taking this blazon of medication, the company will decide, in consultation with your health care provider, whether you tin go on to perform your current task. If not, y'all will be temporarily removed from the safety-sensitive position and reassigned to another position or placed on a temporary leave of absenteeism. When yous are no longer taking the medication, you will be restored to your original position." I'd also include a argument in the policy that the information provided by the employee will be kept confidential and separate from the employee's personnel file, as required past the ADA.

Care for all legal medications the aforementioned, whether they are prescription or not. Some over-the-counter medications tin can have significant mind-altering effects, too. Non to mention alcohol and legal marijuana.

Employ this policy to all safe-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. Just even non-prophylactic-sensitive employees demand to be clear-headed when they're at piece of work, and they need to be able to perform their positions competently.

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

"Too much data!"

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

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Source: https://www.jdsupra.com/legalnews/how-to-ask-employees-about-their-legal-14784/

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