Employer requiring employees to disclose their medications

First, I was hired 2 years prior to the implementation of a new (as of 7-1-10) random drug testing policy.  My employer has also instituted a policy which now requires us to disclose any medication, (over-the-counter or prescription) we take which 'could' cause impairment. The new rules state that an employee who sustain an injury, or whose client sustains an injury while said employee is on duty is subject to a drug test. It seems this would leave the door open for the employer to terminate an employee for failing to disclose personal medical information. We do on occasion provide transportation, and I understand their concern and appreciate their attempting to ensure client safety. However, a drug test was not a condition of my employment at the time of hire. I object to random drug testing and 'for cause' testing. If an employee does not perform his or her job adequately, he/she should be let go. The law already allows for this. Can my employer require me to disclose the medications I take as directed by my physician?

Thanks all!

"Can my employer require me to disclose the medications I take as directed by my physician?"

Yes as part of mandatory drug testing.  If you have a valid prescription you disclose it to the drug testing lab.

"However, a drug test was not a condition of my employment at the time of hire."

They are free to change the policy at anytime.

"I object to random drug testing and 'for cause' testing."

You have the right to refuse and they have the right to fire you for doing so.  

"The new rules state that an employee who sustain an injury, or whose client sustains an injury while said employee is on duty is subject to a drug test."

Yes, any time a client or an employee is injured they have to report it to their liability insurance or WC insurance carrier.  By having a mandatory drug testing policy in place it lowers the rates they pay for coverage.  Also state law dictates that if the employee was impaired they can deny the claim for WC.  

"It seems this would leave the door open for the employer to terminate an employee for failing to disclose personal medical information."

No.  Unless you require medical accommodation under ADA there is no need to disclose anything.  If you are subject to a mandatory drug test and aren't using anything like amphetamines, narcotics, or illegal drugs there is no need to worry.  However if you are taking over the counter antihistamines it is in your best interest to list it on the chance it causes a false positive.  Listing your medications protects YOU not them.

http://www.testcountry...

ClydesMom:

"It seems this would leave the door open for the employer to terminate an employee for failing to disclose personal medical information."

No.  Unless you require medical accommodation under ADA there is no need to disclose anything.  If you are subject to a mandatory drug test and aren't using anything like amphetamines, narcotics, or illegal drugs there is no need to worry.  However if you are taking over the counter antihistamines it is in your best interest to list it on the chance it causes a false positive.  Listing your medications protects YOU not them.

Thanks, ClydesMom. So to clarify, they cannot require me to tell them I take medication? I'm not talking about at the time of a required test. I have no problem with that in practice (I understand I really have no choice, I just don't like it lol). Their wording is as follows : "Any employee whose use of any therapeutic drug(s) may (my italics) affect his/her capacity to properly perform job duties or may create a danger to himself/herself or to others in the work place is required to report the therapeutic drug use to the Recruitment and Retention Manager. An employee may be allowed to continue to work, even though under the influence of a therapeutic drug, if the Company has determined, after consultation, that the employee does not pose a threat to his/her own safety or health or the safety or health of other employees, and the employee's job performance is not significantly, detrimentally affected by the therapeutic drug. Otherwise, the employee may be required to take a leave of absence or comply with other appropriate action determined by the Company"   I wouldn't refuse a drug test, and can provide the testing entity proof that I have a prescription for a mild pain medication. I have taken this medication for years and have never been suspected of or in fact, been, impaired by it. It has never been an issue, IMO.

Thanks!

Give a quick call to an employment law attorney.  The wording on that one to me doesn't seem legal but I am not a lawyer.  I have no problem with them requiring employees to disclose prescriptions if they appear impaired at work, get injured, or someone in their care is injured and on random drug tests.  However to require employees to disclose ALL medications being taken to an HR flunky with no medical training to accurately assess if it impairs their functioning AND the employee requires no accommodation would seem to run afoul of ADA and privacy laws.  No one wants their employer to know about their hypertension, being prescribed an antibiotic for an infection, or what your OB/GYN or urologist is treating you for.  I imagine the male employees have no desire to disclose their Viagra Rx no more than women want their depression meds on record either.

The only problem you specifically are going to have is pain medication is typically narcotic even if mild in form and they have no legal obligation to let you work with a narcotic in your system.

I will talk to someone. Thanks, I appreciate your help!

This is interesting...I take a boatload of medications for a medical condition.  I am subject to randon drug testing as well, and believe me, you don't know when you are going to get tapped on the shoulder to report for it. (and I am ok with it, I pass it every time)

I had a couple friends at work, who went on a med that starts with the letter 'x', and they talked about it openly, then having an off day, management sends them home telling them it is impairing their ability to do their job. 

I have also seen it where a person works, taking the same med "x" and has an off day, but since management doesn't know they are on that med, doesn't think twice about it.

I once asked if the drug, "x" was one that anybody taking would be sent home and the answer I got was "NO", it's not necessarily the "x", but rather it is perceived that it is causing an effect on the employee.  And I believe that is fair.

I have taken a med that for most people will make them so drowsy, but I have taken 2 at a time, 4 times a day and I don't get sleepy....so in that instance, I can handle the med whereas someone else cannot (and this time I an not talking about drug "x".

I went for a random test and started to get chatty with the lady that had to watch and follow the chain of custody......she immediately told me to shut up, that she did  not need nor want to know about anything. She simply said, 'it will be tested, if anything is detected, the doctor would request proof of the rx, but nothing would be reported to HR if it is prescribed and have valid proof."

"Is that really correct for all jobs?"

Yes.  Despite the conception that someone who takes it and is "used to it" isn't impaired they are.  Narcotics are mind altering as well as pain controlling.  That is in addition to slowed reaction times, impaired judgement, and coordination issues.  

"Couldn't denying someone to work because they take a needed medication for their illness be considered discrimination? "

Not if the employer can demonstrate that the side effects of the medication are impairing the employee's ability to perform the essential requirements of the job.  Remember ADA does NOT apply if the employee cannot perform the essential requirements of the job.  Because narcotics have an unpredictable response in each person and they place the employer at a liability if the employee, co-workers, or clients gets injured they have no obligation to allow the person to work with them in their system.

"I can't imagine that it would be legal to prevent these people from working just because they are recieving the only viable treatment for their condition."

It is.  Narcotic treatment is NOT the only viable treatment for chronic pain.  As a matter of fact there are several non-narcotic methods of controlling pain that allows someone to work without any concern for side effects or impairment.  The problem is many "pain" patients are so addicted to their medication that they not only require it they are abusing it.  The quantities they take typically exceed recommended prescribing levels and no matter how much they believe they aren't impaired they are.  

"Most people that take narcotics for any significant period of time do not get imapired from them."

Nothing could be further from the truth.  In reality they habituate to the drug and therefore don't notice the symptoms as much as those around them.  I can tell when a co-worker is using pain meds; eyes are dialated, speech is slow, reaction time is slow, they slur their words, nausea, and unsteady gait.  They think they are fine.  

"I actually read somewhere that it's illegal for employers to discriminate against people that are in a methadone program."

Being in treatment for a drug addiction is an entirely different matter.  There are different ADA issues in play with a bonafide drug treatment program.

ClydesMom, I appreciate your replies, but you could not be more wrong about opiate tolerance. People absolutely can and do develop tolerance to the euphoric effects of opiates. Also, it is absolutely absurd to claim that there are non-narcotic method of pain control that are just as effective. This is patently false and is an attitude and belief that only serves to further the discrimination that pain patients already experience daily.

This:

"It is.  Narcotic treatment is NOT the only viable treatment for chronic pain.  As a matter of fact there are several non-narcotic methods of controlling pain that allows someone to work without any concern for side effects or impairment.  The problem is many "pain" patients are so addicted to their medication that they not only require it they are abusing it.  The quantities they take typically exceed recommended prescribing levels and no matter how much they believe they aren't impaired they are."

Is absolutely disgusting. Please educate yourself before making such false and discriminatory statements. Clearly neither you nor anyone you know has ever experienced chronic pain. My best friend takes 300 mg of morphine daily. The doctor he transferred to when he moved was shocked to learn his dosage and said that had he not known what my friend takes, he would never suspect he takes anything at all.

"Also, it is absolutely absurd to claim that there are non-narcotic method of pain control that are just as effective."

"Please educate yourself before making such false and discriminatory statements."

You should be aware I have spent 25+ years in the neurology/neurosurgery field and have spent extensive time working with pain patients.  It isn't discriminatory it's fact.  There are chronic pain patients but there are far more that are addicted to the medication under the guise of "pain management."   There are many methods of pain control that do not involve narcotics.  Smart patients are willing to explore them.  Drug seekers don't want to hear about any option OTHER than narcotics.

"you could not be more wrong about opiate tolerance'

Actually you are the one who is wrong.  Developing a resistance to the euphoric effects does not mean the patient isn't impaired.  Tolerance to one affect does not mean that the patient is functioning at 100% in other areas.

"The doctor he transferred to when he moved was shocked to learn his dosage and said that had he not known what my friend takes, he would never suspect he takes anything at all."

NONE of which requires ANY employer to allow the employee to work with that much narcotic in their system.  The law does not require it and gives the employer remedies to address it.  

Your reaction is typical for a pain patient that is only interested in narcotic therapy.  There are many pain clinics that effective manage their chronic pain patients without narcotic treatment.  In fact the goal IS non-narcotic treatment because of the risks involved with long term usage.

Being in treatment for a drug addiction is an entirely different matter.  There are different ADA issues in play with a bonafide drug treatment program.

So an employer can't discriminate against a person being treated with methadone for addiction but they can discriminate against someone who is being treated with methadone for pain?

That isn't actually what she said.

The ADA prohibits discrimination on the basis of the fact that an employee or applicant has COMPLETED SUCCESSFULLY a program for drug addiction. You can't be discriminated on the basis of the fact that you AT ONE TIME were in rehab.

The ADA does not protect current users, REGARDLESS of whether the usage is for pain control or addiction. All of your rantings about whether you are or are not impaired by narcotics taken for pain control do not change the fact that the ADA does not offer protections on that basis. It doesn't matter WHY you are taking narcotics; if you ARE taking them, the ADA does not apply.