Don’t ask about prescription meds without reasonable belief, objective evidence

Q: Is it legal to ask employees what prescription medications they use and whether the medications may affect their behavior or cause a safety issue?

A: In general, no. It could be deemed a disability-related inquiry and therefore discriminatory under the Americans with Disabilities Act Amendments Act (ADAAA). However, employers can make “disability-related inquiries” when they have a reasonable belief—based on objective evidence—that (1) the employee’s ability to perform her essential job functions is being impaired by her consumption of the medication or (2) she will pose a direct threat because of a medical condition. For example, airlines can ask pilots if they are taking any prescription medications that will impair their ability to fly. The objective evidence can include observing symptoms or receiving reliable information by a credible third party. If you have the objective evidence (with or without information from the employee), it’s possible that you have a duty under the ADAAA to engage in the interactive process to determine whether a reasonable accommodation is necessary for the employee. ADAAA-related issues are very fact-intensive and nuanced, so it would be best to consult an attorney with expertise in this area.

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