New EEOC Focus — Prescription Drug Use

In two recently filed lawsuits, the EEOC has sent the message to all employers that it is increasing its scrutiny of employer actions taken against prescription drug users.

Lawsuit #1 – Failure to Hire Due to Prescription Drug Use

In the first instance, the EEOC filed a lawsuit against a South Dakota casino who failed to hire a job applicant after she tested positive for drug use following a pre-employment drug test. The applicant suffered from a back and neck impairment and took legally prescribed pain medication for this medical condition. After failing the drug test, the applicant tried to explain to the casino that the positive drug test result was caused by her pain medication. Even though the applicant told the casino that she would provide additional information if needed, the casino refused to hire her.

In its lawsuit, the EEOC is arguing that the casino’s refusal to hire an applicant taking lawful prescription drugs because of a disability violates the ADA. As explained by the EEOC, “employers cannot refuse to hire someone simply because she takes prescription drugs.” Instead, the employer has an obligation to engage in the interactive process with the applicant to determine whether the applicant can perform the essential functions of the position.

Lawsuit #2 – Terminating an Employee for Taking Prescription Pain Medication

In the second instance, the EEOC filed a lawsuit against a Georgia medical group who terminated one of their doctors because he was taking legally prescribed pain medication. The doctor was undergoing treatment for a chronic pain condition that limited the functioning of his musculoskeletal and neurological systems and the treatment included taking prescribed pain medication and receive spinal injections. After learning of this treatment, the medical group terminated the doctor because of concerns that the doctor would be unable to perform his job safely and competently while taking these medications.

While this appears to be a legitimate concern, the EEOC is arguing the medical group violated the ADA because it failed to engage in the interactive process with the doctor to actually determine whether the doctor could have performed his job safely and competently. Instead, the medical group drew its own conclusions without engaging in any dialogue with the doctor. As explained by the EEOC, ” employers have an obligation to conduct individualized assessments when they have a concern about an employee’s ability to safely perform his or her job duties. The EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”

Take Home for Employers

These lawsuits serve as a reminder to all employers of the importance of (1) engaging in an interactive process with job applicants and employees and (2) providing reasonable accommodations to those taking prescription drugs for medical conditions.