HR Tip: Prescription drugs, employers and the ADA

While it is generally understood that the ADA does not protect employees under the influence of illegal drugs, it is less clear about the issue of prescription drugs. A recent case in the 6th Circuit, Bates v. Dura Automotive Sys. (8/26/14), deals with whether an employer's post-accident drug testing to determine if an employee was taking machine-restricted prescription drugs constitutes a "disability-related inquiry" in violation of the ADA. While the federal District Court had ruled in favor of the plaintiffs, the appellate court's decision leaves the fate of the employer in the hands of a jury. In so doing, it noted that the key issue is whether the testing is designed to identify an impairment or obtain information about an employee's health.

In an article on Workforce.com, Jon Hyman, a partner in the Labor & Employment practice of Meyers, Roman, Friedberg & Lewis, recommends that employers take the following steps to limit their risk:

1. Limit testing for the use of prescription drugs to safety-sensitive positions and to only those medications that could pose a safety risk.
2. Be consistent in the treatment of employees who test positive.
3. Disclose the results only to those who need to know.
4. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.