What do you mean, I can’t ask employees about their medications?
By Darlene Clabault
Antihistamines, antidepressants, opioids, and drugs to treat anxiety or blood pressure. All these medications (and more) could cause employees to be sleepy, even while at work.
Tiredness in certain jobs can be a safety risk for employees and others, yet employers must maintain safe workplaces. Asking employees about their medications might seem like a step in the right safety direction, but doing so could risk a disability discrimination claim under the federal Americans with Disabilities Act (ADA).
Limitations on medical questions
As part of the ADA protections, employers may ask employees medical questions only in certain situations.
They may ask medical questions, including questions about medications, only when they have a reasonable belief, based on objective evidence (such as firsthand observation), that a particular employee is unable to perform the job’s essential functions because of a medical condition.
Employers may also ask about medications if they believe an employee poses a direct threat due to a medical condition, but there are limits to the medical questions employers may ask when they have safety concerns about an employee.
According to the Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA:
- Employers must limit the scope of the inquiry to what is necessary to determine the employee’s ability to perform essential job functions or to assess the need for a reasonable accommodation.
- The employee must authorize any direct communication with their health care provider.
What is a direct threat?
A direct threat is something that poses a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. To determine whether an employee poses a direct threat in the workplace, employers should consider the following factors:
- The duration of the risk,
- The nature and severity of the potential harm,
- The likelihood that potential harm will occur, and
- The imminence of the potential harm.
If, for example, an employee operating a forklift appears sleepy, the employer may tell the employee to get off the forklift and discuss the situation. The employer could discover that the employee is sleepy because:
- They had a late night out with friends,
- A colicky baby kept them up, or
- A drug or medication (legal or not) made them sleepy.
Employers shouldn’t jump to conclusions, but rather, document all related discussions and actions taken.
No hiding under a blanket
Blanket policies that require all employees to disclose all the medications they’re taking risks violating the ADA, because policies like that don’t focus on a particular employee, as required.
Employers with blanket policies should review them to make sure they aren’t adding risk.
If another federal law, such as the Federal Motor Carrier Safety Act and its regulations, requires such medical questions, the ADA doesn’t stand in the way. If the laws don’t require the questions, the ADA steps in.
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