Prescription Drugs: What Your Employer Needs to Know

By: Ron Kallemeyn

From mental health issues to AIDS, prescription drugs are part of the treatment for just about every ailment these days.  Information about these prescription drugs is easily accessible.  The average person can associate drug names to diseases for most of the common prescriptions taken.  Apparently, television commercials are taking the place of medical and pharmacy school.  Most prescription drugs treat any number of problems.  When your employer learns what prescription drugs you take, will he fire you because of prejudice based on the drugs you take?  If he did, it would most likely be a wrongful termination, but what good does that do you in the short term.  Employers do have the right to ask about your prescriptions under limited circumstances.

When Can Your Employer Ask About Prescription Drugs?

 The Americans with Disabilities Act of 1990 (ADA) sets up three different periods to differentiate what the employer can ask about your prescription drugs.  The first period is during pre-employment or before a job offer is made.  The second period is after the job offer is made but before you start working.  The third period is after you begin working.  As you will see, each of these periods has its own set of rules when it comes to prescription drugs.

1.  In the first period, prior to a job offer being made, the employer is not allowed to ask any questions that could result in obtaining information about disabilities.  Under the ADA, the prescriptions a person takes are information that would disclose information about disabilities.  Therefore, before an offer is made, the employer should not know anything about your prescription drugs and you shouldn’t offer information on the topic.

2.  During the second period, between the job offer and the time you start work, the employer may make disability related inquiries as long as he asks all of the people in the same job status the same questions.  The ADA generally prohibits questioning that would provide information about disabilities, including prescription information.  However, in this second period the employer could ask if you take any prescription drugs that would affect your ability to perform your job.  The employer is forbidden to use that information to discriminate against you, unless they show that the information sought was job related and consistent with business necessity. This allows employers to screen out applicants that would be a safety hazard.  For instance, the employer may keep people on strong medications from being bus drivers.  The employer would also have to show that the criteria that kept the person from starting the job could not have been resolved with reasonable accommodations.

3. In the third period, the employer can only ask about disability related issues when it is job related and consistent with business necessity.  Basically, the employer is allowed to ask about prescription drugs as they are related to certain jobs, usually for safety reasons, and consistent with business necessity.  Any information the employer receives about your prescription drug use must be kept confidential and be only seen by people who have a need to know.

Generally, in this regard, the ADA is set up in a way that makes sense.  During the first period, it wants to give all people disabled or not a level playing field in obtaining the job.  The ADA does this by forbidding questions before a job offer is made that will result in obtaining information about a disability.  Then in the second period, after a conditional offer has been made, the ADA gives the employer a little more latitude about asking questions.  Most likely, the questions would be for safety reasons.  It puts everything out in the open which reduces discrimination.  In the third period, the employer needs to know if anything changes in regard to the safety of all employees and the public.