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Mandatory Disclosure of Prescription Drug Use May Violate ADA

    Client Alerts
  • March 31, 2017

When an employee tests positive for illegal drug use or self-discloses such use, many employers condition return to work on the employee’s participation in a substance abuse treatment program. These programs can include drug testing, counseling and other steps intended to assist employees and to provide employers with assurances that the employee is not misusing controlled substances. Last month, the Tenth Circuit Court of Appeals cautioned employers that such treatment programs may not be allowed to ask employees about legitimate prescription drug use.

In Williams v. FedEx Corp. Services, the plaintiff requested FMLA leave for stress and anxiety. When he applied for short-term disability benefits, he informed the insurance carrier that he was also receiving treatment for opiate withdrawal symptoms. The carrier reported this information to the employer, which required the plaintiff to participate in its substance abuse treatment program. The program in turn asked the plaintiff to disclose all prescription drugs he was taking. The plaintiff sued, contending among other things that the questions about prescription drug use constituted an impermissible medical inquiry under the Americans with Disabilities Act (ADA).

The Tenth Circuit agreed with the plaintiff’s argument, reversing the dismissal of this claim and remanding the matter. The court noted that under the ADA, employers are only allowed to require medical examinations and inquiries that are based on legitimate business needs. In this situation, there was no evidence that the employee was misusing lawfully prescribed drugs used in connection with his withdrawal from opiate pain medication.

On remand, the Tenth Circuit instructed the district court to determine whether the prescription drug use could have interfered with the employee’s job, or whether its disclosure was necessary to determine the employee’s compliance with the terms of the treatment program. This ADA prohibition would not apply to a requirement for disclosure of prescription drug use as part of the employer-sponsored drug testing process, because that inquiry is exempt from the ADA medical examination rules. Otherwise, absent evidence showing business necessity, employers should establish the business reasons behind the requirement before insisting that employees disclose medical information of any type.