Question: We require all new hires to pass a pre-employment drug test. Do we have to use the same process we use for our random, reasonable suspicion, and post-accident drug testing and send positive test results to a medical review officer (MRO)? Or, can we simply ask potential new hires for a list of medications they have been prescribed?
Answer: You should use a medical review officer (MRO) to review preliminary positive drug test results for current employees and potential new hires. The MRO will determine whether the individual has a valid prescription and whether the test results fall within the expected levels for the prescription. If so, the test results will be reported to you as negative, provided the sample is sufficient and meets all requirements. With a negative test result, the individual is cleared to work.
Be Cautious About How Much Information You Require
As an employer, you should never ask applicants or employees to list their prescription drugs. Instead you may require current employees to notify you of the fact that they are taking prescription drugs or over-the-counter medications that may impair their ability to perform the essential duties of their positions. Don’t ask for the name of the drug or a description of the medical condition. Require a doctor’s note (fitness-for-duty certification) verifying the employee can safely perform the essential duties of the position while taking the medication.
The ADA and Side Effects of Prescribed Medication
The Americans with Disabilities Act (ADA) requires employers to perform an individualized assessment for each worker whose disability interferes with job performance or safety. You cannot exclude a worker with a disability based on concerns over the side effects of medication, unless you can prove the worker’s use of the medication would cause a direct threat to health and safety. Even then, the ADA reasonable accommodation process may require exploration of alternatives.
Fair Treatment and Established Protocols
Treat prospective employees the same as you do for current employees when screening for drug use. Also, establish and follow your drug testing protocols and ensure you know when to engage in the interactive process as required by the ADA.
Resources for Employers
For more information, see Vigilant’s Model Form, Drug and Alcohol Checklists and Legal Guide, ADA and Prescription Drugs. Also, be sure to review our Drug and Alcohol Model Policy, which is designed to help employers understand their rights and obligations with regards to topics such as recreational marijuana use, randomized drug testing, cutoff levels, and more.
Vigilant members can ask their employment attorney for assistance. If you need ongoing help with complex employment laws and you’re not a member yet, learn more about how we help employers stay compliant.
This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.