Drugs and the Americans with Disabilities Act – What Employers Should Know
There are a lot of job vacancies in the U.S. right now. The good news is there are many qualified individuals who would love to fill those positions. Some of them are persons with disabilities who are often overlooked as qualified candidates.
As an employer, you should know that you cannot refuse to hire a person with a disabilityif the person can perform the required duties of the hiring position.
We checked with Barley Snyder’s of counsel attorney Sarah Yerger, who is based out of the central Pennsylvania law firm’s Harrisburg office, to find the answers every employer should know to ensure they are not discriminating under the Americans with Disabilities Act.
Q: Can an employer have a blanket exclusion policy when testing for drugs?
SY: Employers should not have a blanket policy. A blanket exclusion policy based on drug use may be discrimination under the ADA. It does not allow for the interactive process or a consideration for the employee, his or her circumstances, or possible reasonable accommodations.
Q: Is taking medications for a disability always permitted, no matter what?
SY: An employer cannot force an employee to stop taking medication for a disability, but the employer can prevent an employee from working in certain jobs if the medication could cause impairment.
The best example of this would be safety-sensitive positions. If an employee taking medications for a disability is in a safety-sensitive position and the medication could cause impairment, which might put the employee or others in danger or at risk due to the nature of the job, then an employer could restrict the employee from working in that position.
Q: How can an employer maintain a safe workplace and still meet ADA compliance?
SY: The ADA prohibits discrimination on the basis of disability. However, an employer may legally decide not to hire an individual with a disability if he or she poses a “direct threat to the health and safety” of themselves or others. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
According to the EEOC, an employer’s determination of whether an individual with a disability poses a direct threat to health and safety should be based on an evaluation of the individual’s present ability to safely perform the job and a consideration of the following four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Objective and factual evidence must be used in the evaluation process.
However, proof of an actual direct threat is not necessary; rather, an employer need only show that it “reasonably determined” that a direct threat was posed. That is, was the employer’s determination that an individual with a disability posed a direct threat (i.e., a significant risk of substantial harm) objectively reasonable based on the evaluation and factual information developed for the analysis and determination? If it was, then the individual with a disability is not a “qualified” individual under the ADA.
Q: How does the ADA affect the sustainability of a drug-free workplace policy?
SY: The ADA does not, in any way, prohibit employers from having a drug-free workplace policy, nor does it provide any special protection to individuals who are currently using illegal drugs.
However, it does make it illegal for employers to discriminate against recovering alcoholics and drug users who have already sought treatment for their addiction. Under the terms of the ADA:
• Employers cannot fire, refuse to hire, or refuse to promote someone simply because she or he has a history of substance use.
• Employers also cannot fire, refuse to hire, or refuse to promote employees merely because they are enrolled in a drug or alcohol rehabilitation program.
• Employers who have drug-testing programs need to be extremely careful not to single out employees for testing simply because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms that are commonly associated with intoxication — slurred speech, disorientation, or a lack of coordination — can also be the result of a serious physical disability or medical condition, such as diabetes, low blood sugar, or mental illness.
Individuals with these conditions are protected under the provisions of the ADA. Singling them out for testing or disciplinary action could result in charges of discrimination.
Q: What do you do if you learn that an employee is taking prescription drugs?
SY: Under the ADA, an employer may ask a current employee about prescription medicine only when it’s job-related and consistent with business necessity. That means you may not ask all employees to disclose any medications they take.
Once you know about the medication, engage in the interactive process — ask the employee about the medication and its side effects. See if accommodation is needed and make accommodation arrangements if possible.
For example, if the side effects of a timed medication cause the employee to come in late for work, move her start time to a later hour or temporarily move her to a later shift if you can do so without harming the business.
Q: What are some reasonable accommodations?
SY: Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions.
Reasonable accommodation also includes adjustments to assure that an individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs.
Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation.
However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or production standards as an accommodation; nor are they obligated to provide personal-use items, such as wheelchairs, glasses, or hearing aids. The decision as to the appropriate accommodation must be based on the particular facts of each case.
Q: Can employees with disability be fired?
SY: They can be terminated if there is a legitimate, nondiscriminatory basis for termination. They cannot be terminated because of their disability.
Q: May an employer ask if an applicant or employee is on any medications either during the hiring process or once hired?
SY: The ADA states, in relevant part: “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.
At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
Q: If you can’t ask if someone has a disability or is on medications, how can an employer know from the outset if the person is the right candidate for the job?
SY: Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:
• Employers may ask about an applicant’s ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.
• Employers may ask about an applicant’s nonmedical qualifications and skills, such as the applicant’s education, work history, and required certifications and licenses.
• Employers may ask applicants to describe or demonstrate how they would perform job tasks.