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James Tarquin, P.A
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Does The ADA Protect Employees From Having To Disclose Their Prescription Medications?

ADA notebook with stethoscope and pencil on top

Having litigated employment discrimination cases in Florida courts for more than twenty years, our Alachua County, Florida employment discrimination lawyers know that employers often require employees to disclose their prescription medications. Under the Americans with Disabilities Act (ADA), employees are protected from discrimination on the basis of disability. The ADA further provides that employers are not allowed to require medical examinations or make inquiries of employees as to whether they are disabled or as to the nature or severity of their disability, unless the employer can establish that a medical examination or inquiry is job-related and consistent with business necessity.

Courts have determined that an employer policy which requires employees to disclose their prescription medications can be an “inquiry” that is likely to lead to the disclosure of whether an employee has a disability or as to the nature or severity of the disability. Thus, unless an employer can demonstrate that requiring employees to disclose their prescription medications is job-related and consistent with business necessity, an employer policy which requires employees to disclose their prescription medications violates the ADA. In this article, our Gainesville, Florida employment discrimination attorneys explain how the recent decision in EEOC v. Loflin Fabrication, LLC, 18-813 (M.D. N.C. May 22, 2020) illustrates that employers can require employees to disclose their prescription medications only in limited circumstances.

Employees Required To Disclose Prescription Drugs

In that case, the U.S. Equal Employment Opportunity Commission (EEOC) brought an employment discrimination lawsuit pursuant to the ADA against Loflin Fabrication, LLC (Loflin) on behalf of a former employee of Loflin, Deborah Shrock (Shrock). The EEOC is the federal agency responsible for interpreting and enforcing the federal anti-discrimination laws, including the ADA. The EEOC claims that Loflin violated the ADA by requiring all employees, including Shrock, to disclose their prescription medications to Loflin and by firing Shrock based on her violation of Loflin’s prescription disclosure policy.

Loflin is a metal fabricating business in Denton, North Carolina. Shrock began working for Loflin in July 2016 as an office manager. Her duties included supervising the office employees and performing human resources functions. Her office was in the same building as the factory shop. The factory shop is busy, and there are dangers associated with the manufacturing process and moving of heavy items. Shop employees use welding equipment, along with other heavy equipment, such as bobcats, cranes, and forklifts. The administrative staff, including Shrock, walk through the shop area from time to time for a variety of reasons, such as to help with computers and to obtain documents.

Because of the dangers existing in the factory shop, Loflin has long prohibited employees from working while under the influence of any narcotic, and since at least 2017 it has conducted random drug screening tests. Failing a drug test or refusing to take a drug test is grounds for termination. For the same reason, Loflin has required employees to inform the company of prescribed medication since the early 2000’s. In fact, there was testimony that Loflin required employees to disclose all prescription medications and did not limit its policy to require disclosure only for narcotics and other prescriptions that might affect an employee’s ability to do his or her job.

Employee Fired For Violating Prescription Disclosure Policy

In January 2017, Shrock saw a doctor for neck pain. She was prescribed a muscle relaxer to take as needed. The medication bottle indicated side effects that included dizziness and drowsiness. From January to September 2017, Shrock took the muscle relaxer only a few times. Shrock never took the medication at work, and pursuant to her doctor’s advice, she always began work at least eight hours after taking it. Shrock did not inform anyone at Loflin about the prescription.

On September 20, 2017, Shrock was informed that she had been randomly selected for a drug test. Shrock told management that she had taken prescription medication for neck pain the night before. Shrock took the drug test, and some days later the results came back negative for all substances screened. On September 22, 2017, Shrock was informed that her employment was terminated because she violated the company’s prescription disclosure policy by not disclosing her prescription. Shrock asked for a second chance. Her request was denied.

Employer Must Establish Business Necessity Defense

Loflin filed a motion with the trial court seeking dismissal of the EEOC’s claims under the ADA. In doing so, Loflin contended that its prescription disclosure policy was justified by the business necessity defense. The trial court denied Loflin’s motion for dismissal and ruled that the EEOC was entitled to proceed to a jury trial on its ADA claims.

At the outset of its opinion, the trial court observed that “courts have held in many circumstances that policies requiring employees to disclose their prescriptions to the employer can be an inquiry that is likely to lead to the disclosure” of whether an employee is disabled or as to the nature or severity of an employee’s disability. Thus, the trial court explained that Loflin’s prescription disclosure policy violated the ADA, unless Loflin could establish the business necessity defense. However, the trial court pointed out, “the scope of the business necessity defense is not well-defined by the case law.”

Must Show Risk Of Harm To Employee Or Others

The trial court observed that in the context of prescription drug disclosure requirements, “the EEOC has interpreted the [ADA] to prohibit across-the-board inquiries about all prescription medications taken by employees, unless the employer can demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.” “Under these limited circumstances,” the trial court noted, “an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat,” which is defined as a “significant risk of substantial harm to the health and safety of the [employee] or others.” Courts have also “indicated that the employer must show a connection between [the employee’s] specific job and the drugs prescribed,” and that the “inquiry must be no broader or more intrusive than is necessary to further business necessity.”

In applying these principles, the trial court found that the EEOC had presented sufficient evidence to establish that Loflin’s prescription disclosure policy violated the ADA. The trial court explained that although “Loflin’s shop floor could be a dangerous place,” the EEOC’s evidence showed that Loflin “required disclosure of all prescriptions, even those that could not possibly have any impact on worker safety, even those that were taken at night or outside of work hours, and even if the employee never took the medicine at all.” The trial court also pointed out that the EEOC’s evidence established that Loflin “terminated Shrock without any inquiry into whether her prescription was a narcotic.” Thus, the trial court determined that the EEOC’s evidence tended to establish that Loflin’s prescription disclosure policy was “overbroad” and not justified by business necessity. Consequently, the trial court concluded that it was for the jury to decide whether Loflin’s prescription disclosure policy violated the ADA.

Employee Fired For Violating Illegal Policy

The trial court also found that the EEOC had presented sufficient evidence to establish that Loflin’s termination of Shrock’s employment based on her failure to comply with the prescription disclosure policy violated the ADA. The trial court explained that while “the elements of this unlawful termination claim are not completely clear, it seems logical that if the prescription disclosure policy was overbroad and not justified by business necessity,” and Shrock was fired for “violating that illegal policy,” then “Loflin’s act in terminating her violated the ADA.”

Consult With Gainesville Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Alachua County, Florida employment discrimination attorneys have been fighting against discriminatory employment practices for more than two decades. If you have been subjected to discriminatory employment practices or have questions about your employee rights under the federal anti-discrimination laws, please contact our office for a free consultation with our Gainesville, Florida employment discrimination lawyers. Our employee rights law firm takes employment discrimination cases cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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