Q&A: Prescription Drugs

July 31, 2018 | , Managing Partner

Health-related information is a sensitive topic for today’s employees, and sometimes it’s difficult to know what questions can be asked of employees.  We answer one of those questions below.

Question

Are we allowed to ask employees whether they’re taking prescription drugs? Also, would this type of information be protected under HIPAA?

Answer

No. In most instances you are prohibited from asking employees about any prescription medicines they are taking. This type of medical-related inquiry is considered confidential medical information and is protected under the Americans with Disabilities Act (ADA). You are also prohibited from asking job applicants, regardless of the job, about prescription drug use prior to making an offer of employment.

In very limited circumstances, you may have the right to ask employees about prescription drug use if you can demonstrate an employee’s use of prescription drugs is “job related and consistent with business necessity.” For example, this would not apply to general office or low safety risk positions, but it may apply to positions that are safety sensitive, such as drivers who are covered under the Federal Motor Carrier Safety Act (29 CFR 382.213).

Regarding HIPAA privacy laws, protected health information is defined as medical information being shared by medical providers and health insurance companies and does not typically apply to general employee conversations in the workplace. However, the ADA protects the privacy of medical information of all applicants and employees, with or without a disability.

The bottom line is that in most cases you should not inquire about your employee’s use of prescription medication unless you are able to demonstrate the inquiry is “job related and consistent with business necessity.”

Regardless, this inquiry should not take place without first reviewing the circumstances with legal counsel. You should also review your state’s laws in case there are additional requirements and restrictions.

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