Can an employer ask employees what type of medication they are taking and why?

Asking employees questions regarding prescription drug use may be considered a medical-related inquiry under the Americans with Disabilities Act (ADA). The ADA does not just protect individuals with disabilities, it also protects the privacy of medical information of applicants and employees, with or without disabilities. Therefore, employer inquiries regarding the use of prescription medications may be prohibited under the ADA in all but a few circumstances.

The Equal Employment Opportunity Commission (EEOC) guidance on medical inquiries under the ADA states that asking all employees about the use of prescription drugs is rarely job-related and consistent with business necessity. The guidance further explains, "In limited circumstances, however, certain employers may be able to 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, 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."

The examples the EEOC provides are armed police officers and airline pilots, whose use of prescription medications may affect their ability to safely perform their jobs. Conversely, administrative employees such as accountants, information technology professionals, administrative assistants, human resource professionals and most employees in management positions would not face significant job-related safety risks associated with side effects caused by prescription medications.

There are also exceptions pertaining to medical inquiries for occupations regulated by federal law. For example, CFR 382.213 of the Federal Motor Carrier Safety Act indicates that drivers in safety-sensitive positions may be required to disclose the use of controlled substances, though there are some exceptions to this rule. Similarly, the Federal Aviation Administration has issued guidance requiring pilots and other aircraft-related, safety-sensitive positions to disclose prescribed medications.

For the vast majority of positions, employers may not ask job applicants about prescription drug use, regardless of the job, prior to making an offer of employment. Employers that feel it is necessary to have policies regarding disclosure of employee prescription drug use should have such policies reviewed by legal counsel.