HR Management & Compliance

Employer Q&A on Disabilities, Drugs and the ADA

Can an employer legally terminate an employee who is permanently disabled and can no longer perform the essential job functions? Do Americans with Disabilities Act (ADA) protections apply to all employees immediately, or must they be employed with the company for a certain amount of time first? What can employers ask when it comes to employees taking narcotics to handle their disability?

These questions are being faced every day by employers, and they don’t always have easy answers. In a recent BLR webinar, Jonathan R. Mook and Alan G. Rosmarin, MD, answered these questions and more. Here’s a recap.

Q. If a doctor verifies an employee is permanently disabled and will never perform the essential functions of their job, can we legally let that employee go?

A.The short answer would be yes. If you have no other reason to believe that the employee – even with an accommodation – could come back to work. But the more involved answer would be: even if you get that certification from the doctor, go to the employee and ask about whether there would be any accommodations that would enable them to perform the essential functions of the job and return to work.

This double check ensures that there really are no accommodations that would allow the employee to return. Document that conversation afterward either way. It would also be good to ask for specifics: what tasks cannot be performed? Will the duration truly be permanent?

Q. Is there a length of employment required before someone is covered under the ADA?

A.No. As opposed to the FMLA, the ADA is in effect immediately for all applicants and employees.

Q. Does the employee have to request a specific accommodation?

A.No. The employee has to initiate the dialogue—the normal process would be that the employee reveals he or she is having difficulty doing their job because of a medical condition. That will be sufficient to trigger the employer’s obligation to ask how they can help (i.e. start the interactive process to determine a reasonable accommodation).

Q. Can the employer ask the employee whether they are taking narcotic medication for pain control if driving vehicles is an essential job function?

A.You can ask employees to inform you if they are taking medications that would interfere with their ability to perform their job safely. So, yes, you can ask employees doing those specific jobs where the taking of medication could interfere with their ability to safely perform those jobs. From a medical perspective, this is also part of the responsibility of the physician when medical documentation is involved: to advise what impairments there might be—both for the safety of the individual and others (but without disclosing inappropriate information).

However, the issue of employers requesting information from employees about medications can get employers into hot water, particularly when an employer is requesting that an employee reveal all medications they are taking. It can also be an issue if the request is made for non-safety-sensitive positions (since the medications wouldn’t affect the ability to perform the job safely).

Q. What about alcohol testing? When we have random tests for illegal drug use for safety-sensitive positions, can we also test randomly for alcohol?

A.What I explain to employers is that there’s a distinction under the ADA between the two types of tests. Under the ADA, a test for an employee or applicant’s illegal use of drugs is exempted from the ADA limitations on an employer’s medical inquiries. So, an employer basically has a free hand in requesting that an employee or job applicant undergo a test for the illegal use of drugs.

However, a test for an employee’s use of alcohol is considered to be a medical examination under the ADA, and it can only be done by an employer where that test is “job-related and consistent with business necessity.” In some types of jobs, it would be job-related and consistent with business necessity to do random alcohol testing. For example: bus drivers, truck drivers, etc. In those types of situations, random alcohol testing and random drug testing may well be justified, given the nature of the job.

If the employee is working in an office environment, I can’t conceive of a situation where random alcohol testing would be justifiable under the ADA. There will be other jobs that will qualify, but it’s a strict standard.

There’s a real importance of narrowly-tailoring those medical requests to the type of job the person is performing and the environment in which that person is performing the job. It’s an issue of assessing functional impairment rather than the particular drug or disease—the impairment is the issue at hand.

For more information on administering the ADA in your workplace, order the webinar recording of “Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Alan G. Rosmarin, MD, is chief of the Division of Hematology/Oncology, which provides expert diagnosis, treatment and support of cancer patients, as well as extensive research and clinical trials, within the Department of Medicine at UMass Memorial Medical Center in Worcester, Massachusetts. Dr. Rosmarin also serves as the deputy director of the UMass Memorial Cancer Center at the University of Massachusetts Medical School and UMass Memorial.

Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”