Knowledge of your rights is the most powerful weapon you can wield when facing medical discrimination. In most cases, an employer cannot ask specific questions about which prescription drugs you are taking. This is due mainly to provisions within the Americans with Disabilities Act, which seeks to protect employees from discrimination by employers based on medical information, whether or not they have a disability.
According to the U.S. Department of Labor, your job status has a considerable impact on what an employer may ask you. A company or organization cannot ask any medical questions, including questions about prescription drugs, during an interview or at any point before you have a conditional offer of employment. After you have the offer, the employer may ask you only medical questions that are relevant to your job functions, and the questions asked must be identical for all new employees with similar job functions.
The Equal Employment Opportunity Commission maintains and enforces guidelines for employers based on the Americans with Disabilities Act and subsequent court cases. The EEOC requires that any questions asked by employers about disability or medical information are "job related and consistent with business necessity." Furthermore, an organization may not ask about which prescription medications an employee is taking unless that employee is in a position that may directly affect public safety. In this case, the prescription medications in question must hinder their ability to perform their duties and pose a considerable risk to public safety. For example, a tractor-trailer trucking company could require its drivers to disclose prescription medications that would affect their ability to drive on public roads, but a manufacturing company could not ask its office administrator any questions about prescription medication.
The privacy rule of the Health Insurance Portability and Accountability Act provides further guidance on the manner in which employers may obtain medical information about their employees. Employers cannot request information directly from your healthcare provider without your express authorization, even to verify prescription drug use in the case of a failed drug test. The privacy rule, however, does not cover your employment records, even if these employment records contain information about or evidence of a disability or prescription drug use.
Despite the Americans with Disabilities Act and HIPAA, the Supreme Court has upheld the right of employers to randomly drug test their employees. Some employers also maintain a policy of terminating employees who test positive for certain substances that may be legally prescribed, citing safety concerns. This means that even though you may not be required to disclose your prescription medications to your employer, your job could be at risk if you test positive for medications that are banned by your employer's policies.
- National District Attorneys Association: HIPAA Exceptions
- Equal Employment Opportunity Commission: Employer Responsibilities
- Equal Employment Opportunity Commission: Disability Related Inquiries Guidance
- U.S. Department of Health and Human Services: Understanding HIPAA
- U.S. Department of Labor: Disability Rights Fact Sheet
- The New York Times: Drug Testing Poses Quandary for Employers
Jon Gjerde worked as a journalist in northern California where he covered topics ranging from city, county and tribal governments to alternative transportation. He holds a Bachelor of Arts in English from University of California, Davis.