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Thursday, February 2, 2012

Requiring Employee Disclosure of Legally Prescribed Medications Risky

By Tommy Eden, Attorney

Product Fabricators located in Pine City, Minnesota fired long-time employee Dennis Anderson because he was taking a low-dosage, legally prescribed narcotic medication for back pain. Product Fabricators is a contract manufacturer providing sheet metal fabrication and powder coating services.

All employees were required by Company policy to report their legal use of prescription drugs – and even over-the-counter medication. As one might imagine, the EEOC contended that Anderson’s firing was taken because Product Fabricators perceived Anderson as being disabled solely because he was taking the medication, and failed to consider his ability to perform the job before firing him. Additionally, it contented that such medical use inquiries were illegal under the Americans with Disabilities Act (ADA) without showing business necessity.

Suit was filed in the U.S. District Court in Minnesota asserting that this blanket disclosure policy was a violation of the ADA because it was not related to the ability of Product Fabricators employees to do their jobs, and was therefore unlawful because employees complying with the policy were likely to unwillingly disclose information about any disabilities or impairments they may have. The suit also charged that requiring all employees to report their legal use of prescription drugs – and even over-the-counter medication – amounts to an unreasonable invasion of privacy, whether an employee is disabled or not.

The case was eventually settled with Dennis Anderson receiving $40,000 and Product Fabricators and the EEOC entering into a 3 year monitored consent decree enjoining the company from continuing its policy requiring disclosure of prescription drug use. However, the District Court Judge refused to allow the case to remain on his docket for 3 years and dismissed the case. The EEOC took him on next.

In reversing the District Judge’s decision, the Eighth Circuit embraced the principle that “[c]ontinuing jurisdiction is the norm (and often the motivation) for consent decrees.” Once the EEOC has reached a settlement with an employer accused of discrimination, continuing jurisdiction provisions enable the EEOC to ensure that defendants will comply with civil rights laws for years to come.

To show lessons not learned, Product Fabricators fired employee Adam Breaux 2 years later after he inquired about taking time off to have shoulder surgery. He was allegedly fired because he inquired about taking time off for shoulder surgery and for participating in an interview with an investigator from the EEOC.

Common Sense Counsel: Employer action steps to stay off the EEOC radar: 1) updated drug testing policy; 2) updated job descriptions with essential functions; 3) ADAA handbook policy language; 4) supervisor training on ADAA responsibilities; and 5) understanding the interactive ADA dance steps.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540. Past articles can be found at