Both state and federal law prohibit employers from discriminating against employees for their prescription drug use – because it essentially equates to discriminating against them for their underlying medical condition or disability, says employment law defense attorney Todd R. Wulffson of the firm CDF Labor Law LLP.

Employers may not ask applicants about their prescription drug use before an employment offer is made, and afterward, the employer still must be very careful as any inquiries must be limited to the employee’s ability to perform the essential functions of the job or to whether there is a safety risk to the individual or others.

Here are a few of the areas where employers need to develop appropriate policies and/or practices to avoid liability in connection with prescription drug use:

1. It is permissible to have a post-offer, pre-employment drug test for employees, but all questioning regarding drug use and interpretation of the results should be done by a certified drug-testing lab. The lab simply tells the employer whether the employee passed or failed. There should be no communication with the lab about anything else – and no discussions between the employee and management regarding anything having to do with prescription drugs. If the employee asks a manager a question about the test, the response should be, “You will have to ask the people at the clinic or lab.”
2. Employers need to have a drug-testing policy that allows for testing of potentially improper use of prescription drugs. Most employers have a policy that says the company conducts drug testing to ensure applicants and employees are not under the influence of “illegal” drugs at work. Employers do this to put applicants and employees on notice of testing that would otherwise be an invasion of their privacy. Savvy applicants or employees who may have lost an employment opportunity because of that policy may argue that they failed the test because of a “legal” drug, namely one that was prescribed for them, even if they know they took three times the prescribed dosage. To avoid this potential problem, employers should update their drug testing policy to define an “illegal” drug as including improper use of prescription or over-the-counter drugs, e.g. state that if an employee is on medication, they must use it in accordance with the doctor’s order and must have consulted with the doctor to ensure they can work safely. The policy should also state that only prescriptions issued in the employee’s name and stored in the original container are permitted on company property.
3. Training management is also key to avoiding liability. It is preferable to have someone (likely in HR) trained to recognize the signs of impairment – and trained on how to discuss the issue with the employee. That is the person to whom all employee questions should be directed about accommodation issues, needs for leave to take medication, etc. It is also good to have the company speak with one, consistent voice on any such issue, as you do not want different managers providing different answers to questions about workplace accommodations. It may be impermissible to ask the employee what medications they are on, but if they appear impaired, it is perfectly fine for a trained member of HR to ask them if they can explain their appearance and/or behavior. They may volunteer that they are on medication or an over-the-counter drug, at which time it is permissible to tell them they need to provide a doctor’s note indicating that it is safe for them to be at work. If permitted by your policies and in compliance with applicable law, you may also send them to be tested at this point, if their explanation is not satisfactory. Either way, never instruct an impaired employee to drive to the doctor or clinic. It is compensable time, so send them to the doctor or clinic with a manager who can make sure they go, and do it as efficiently as possible. (Just remind the manager that there is to be no small talk about medical or drug issues.)
4. A final issue of avoidable liability for employers is with respect to confidentiality. Federal and state law provide that medical information must be kept confidential – ideally, in a file separate from the personnel file to which managers may have access. If an employee voluntarily chooses to notify management about their use of prescription medication or other medical treatment, it is the manager’s responsibility to keep that information confidential and to share it only on a need-to-know basis. It is unlikely that anyone other than HR actually needs to know. Aside from an emergency situation, medical information can only be shared with the employee’s consent. If a manager who should not have access to medical information, does in fact have access, it will make it difficult to argue that any negative employment action was not based – knowingly or inadvertently – on the manager’s knowledge of the employee’s medical information.

Our industry does not recognize card carriers for medical marijuana, as per our state law, says HR Specialist Andrea Rose. Use of prescription drugs that may alter an employee’s ability to perform daily tasks may require:

• a medical leave of absence (either STD or LTD) that the employee is not penalized for, or
• a reduction in duties if instructed by the employee’s primary care physician.

We do require appropriate documentation from the employee to mitigate possible liability issues.

Prescription drugs are allowed if the employee is following the doctor’s instructions, says Director of HR Patrick Salmans. If the prescription causes workplace safety issues, then we ask the employee to communicate with the doctor to change it.

Our company cautions against the use of prescribed and over-the-counter medication, says HR Manager Sallie Hansen, because it can affect employees’ ability to perform their jobs safely.

We also warn against the use of prescribed or over-the-counter medication in a manner that violates the recommended dosage or instructions from the doctor. Employees must have a valid prescription for any prescription medication used while working at our company. Employees are asked to inform their supervisors prior to working under the influence of a prescribed or over-the-counter medication that may affect their ability to perform their jobs safely.

If the company determines that the prescribed or over-the-counter medication does not pose a safety risk, employees are allowed to work.

Failure to comply with these guidelines concerning prescription or over-the-counter medication may result in disciplinary action, up to and including termination of employment.