Requiring EE to inform ER of prescription meds?
heather1027
45 Posts
Our operations require our EEs to use forktrucks, mobile cranes and things of that nature, and we believe that some EEs might be on scripted meds which could affect their cognitive or motor skills. Could we consider creating a policy/memo informing EEs that they must report any meds which could affect their ability to perform their jobs safely? <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Comments
Generally, no. Asking employees about their use of prescription medications is not job-related and consistent with business necessity. In order to have such a policy you would have to live up to a “Direct Threat" threshold. That would mean a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. (29 C.F.R. §1630.2(r)(1998) ). To determine whether an employee poses a direct threat, the following factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and, (4) the imminence of the potential harm.
However in limited circumstances certain employers may be able to demonstrate that an inquiry 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.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Ok, looking at:
§ 1630.14 Medical examinations and inquiries specifically permitted.
it states in section c:
(c) Examination of employees. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
(1) Information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
This section seems to allow such an inquiry. We had a work related accident which brought this issue to light. I believe we could require this info in a drug and alcohol policy, but I'm wondering (also) if it would be negatively perceived after the injury to just have a policy on reporting prescribed meds by itself.
Please provide additional thoughts and understanding.
I read that when I looked at information for your question. However if you take a closer examination it is speaking about medical examinations and inquiry as related to job necessity, such as drug screenings, as it relates to job performance. That is quite different than a policy that would subject an employee to notifying you of what medications they are taking. The second part is simply stating that any information that can be legally gathered has to treated as confidential information. It does not grant an employer an authority, as a single statement, to gather medical information. The last statement does give authority on a need to know basis to pass information concerning a person's medical condition under very limited circumstances as regards business necessity.
The problem is that such a policy would have to define a necessity for the business to operate. What clear and present danger is created by the person taking medication, not simply that a person is taking medication. A person merely taking medication is not a need to know issue for an employer, especially if there has been no reason, incident, or condition that created that need to know. (Even though you had an incident with an employee that does not change the conditions of ADA or other privacy protections that apply to other employees.)
In fact you have to be careful that you do not bump into the unintended consequence of having an ADA violation. You may find yourself asking what may become a disability related inquiry. A "disability-related inquiry" is a question (or series of questions) that is likely to elicit information about a disability. Disability-related inquiries may include asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications. (Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police department implemented a policy of monitoring employees taking psychotropic medication). The PD certainly had an intention of the right thing but fell foul of ADA.
Your intention may be good but once a person has passed any business necessity examinations then the employer cannot monitor medications that their employees take. I found the guidance from this EEOC document and hope it will be helpful to you. http://www.eeoc.gov/policy/docs/guidance-inquiries.html#N_23_
Or keep a really, really close eye on the "suspects" and hit them with a reasonable suspicion drug test if you see them sway, stagger, shuffle, speak oddly, etc. Of course, if you take your eye off them and they impale someone with a forklift, that's going to be bad. I would take a look at the ADA language. I agree with Heather's conclusion above but I'm leaning more on the safety provision than on the job performance provisions for examination requests.
Heather I posted an in depth reply about an hour ago but for some reason it has been held up by the moderator. Don't know why but I included more references from a guidance document from the EEOC. Hope it shows up.
EDITED: Ok It did show up above.
Heather I posted an in depth reply about an hour ago but for some reason it has been held up by the moderator. Don't know why but I included more references from a guidance document from the EEOC. Hope it shows up.
EDITED: Ok It did show up above.
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Moderation seems to be really slow lately. Threads that are open get replies pulled aside for moderation all the time if the reply is long. I have two replies going with mostly the same content in the discrimination section. I did a little experiment and it appears that length of the reply is the determining factor.
Hello,
Thanks for the input with this issue. Ultimately, I contacted ADA and they directed me to the EEOC. The EEOC informed me that once the EE starts, the ER can only ask if the ER needs medical documentation to support an accommodation
or
if the ER has reason to believe the EE is unable to do their job safely, then the ER can ask.
They indicated that it must be asked of all (with the safety risk) so it doesn't become discriminatory. I asked Norma, the EEOC rep where this statement could be found on the site and after looking for at least 10 minutes, she was unable to provide a site location for the information. She indicated that this was information on her internal system.
From the Job Accomodation Network, a great ADA resource I learned about from this community:
Disability-related inquiries and examinations of employees must be “job-related and consistent with business necessity.” According to the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA, a medical inquiry or examination is job-related and consistent with business necessity when:
For additional information, visit: Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA)
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See the eeoc's Web site slash docs slash guidance-inquiries dot html.
Just Google Job Accomodation Network
I would definitely seek counsel before placing in writing before all your employees a standing order to disclose medical information in certain circumstances. With that being said, I think if you flesh the policy out with specific job titles or duties and use specific phrasing from ADA regs themselves, this can be done.
So, not something like "If you are taking meds that could affect your performance, then tell us" but perhaps "If you are taking any meds that specify that you should not operate machinery, then you must disclose to the Company that you may not be able to perform your duties safely."
Naturally, such disclose opens the door to inquiry.