Employees’ use of legal drugs, including prescriptions and over-the-counter medications, can put employers in a bind. Even though such drugs may adversely impact an employee’s performance and ability to safely perform his or her job, the Americans with Disabilities Act (ADA) places significant constraints on both what an employer may test for, and what the employer can do with the information received.
A recent case decided by the U.S. Court of Appeals for the Fourth Circuit — Lisotto v. New Prime, Inc., No. 15-1273 (4th Cir. May 3, 2016) — provides a good example of the ADA risks inherent in asking about and testing for legal drugs and how that information is subsequently applied.
The Lisotto case involves a trucking company that conducted pre-employment drug tests on applicants to whom it had extended offers for truck driver positions. Despite initially telling the plaintiff that he could be cleared to drive even with his narcolepsy, which the plaintiff had disclosed to the company, the offer was withdrawn after he tested positive for legally-prescribed amphetamines. The Fourth Circuit found that the company’s refusal to hire the plaintiff could constitute unlawful discrimination under the ADA, and sent the case back down to the trial court for further analysis.
Members of the Equal Employment Advisory Council (EEAC) can read more here.