EEOC Increases Scrutiny Of Employer Actions Taken Against Prescription Drug Users

Prescription drug abuse has made national news in the last few years. In March 2016, President Obama noted that "prescription opioid abuse and [the] heroin epidemic claims the lives of tens of thousands of Americans each year," and that he was taking more steps to address the epidemic. He stated on Twitter that the "epidemic is harming too many Americans and their families," but that "treatment works and recovery is possible."1

This does not mean, however, that employers must not be mindful of federal and state disability laws that protect those taking prescription drugs for valid medical conditions. Two recent lawsuits brought by the Equal Employment Opportunity Commission (EEOC) alleging disability discrimination claims in violation of the Americans with Disabilities Act (ADA) underscore the importance of engaging in an interactive process with job applicants and employees and providing reasonable accommodations to those taking prescription drugs for medical conditions.

Failed Drug Test Due to Valid Prescription Drug Use

On September 14, 2016, the EEOC filed a lawsuit in a South Dakota federal court against a casino on behalf of a job applicant after her pre-employment drug test revealed a positive drug test result. According to the EEOC, the applicant suffered from a back and neck impairment, which limited her ability to perform certain tasks, such as lifting and bending. After receiving the positive test result, the casino withdrew her job offer. The EEOC alleges that when the applicant tried to explain to the casino that the positive drug test was due to legally prescribed pain medication, even offering to provide documents to support this, the casino still refused to hire her.

The crux of the EEOC's lawsuit is that the casino's refusal to hire an applicant taking lawful prescription drugs due to a disability violated the ADA. The lawsuit also challenges the casino's blanket policy requiring all employees, regardless of whether they work in safety-sensitive positions, to disclose their prescription or non-prescription drug use.

Doctor's Note Stated Treatment Included Pain Medication

Two weeks later, on September 28, 2016, the EEOC filed a complaint against a regional medical center alleging it terminated a physician after learning about his use of narcotic drugs to treat his chronic pain. According to the lawsuit, which was filed in Georgia federal court, the physician provided the medical center with a letter from his doctor, which...