Diversity & Inclusion

Don’t Ask about Prescription Meds Without Reasonable Belief, Objective Evidence

Q Is it legal to ask employees what prescription medications they use and whether the medications may affect their behavior or cause a safety issue?

A Generally, no. Asking employees whether they’re taking medications that may be affecting their behavior or causing a safety issue is covered by the Americans with Disabilities Act (ADA) because it is likely to elicit information about a disability. Such inquiries are permissible only when they’re job-related and consistent with business necessity. To meet that standard, you typically must have a reasonable belief, based on objective evidence, that an employee’s ability to perform the essential job functions will be impaired by a medical condition or that the individual will pose a direct threat to himself or others because of the condition.

Q We are reducing staff because of a decrease in annual revenue. Ten positions will be eliminated. For one of the employees, however, we are considering reducing her salary instead of terminating her. Are we legally allowed to do that?

A Yes, you are legally allowed to reduce an employee’s wages under the following conditions: (1) She isn’t covered by a collective bargaining agreement, (2) she doesn’t have an individual employment contract that requires payment of a certain salary, (3) if the employee is exempt, the reduction in salary must not reduce the weekly guaranteed salary below $455, and (4) if the employee is nonexempt, the reduction in salary/pay doesn’t bring the individual’s hourly pay rate below the applicable “minimum wage” where she works. You should be certain, however, that the change doesn’t create an unlawful pay disparity among comparable positions.

Q We have an employee who is about to turn 65. He has been with the company about 10 years. He is very negative about the organization and has created the same negativity in his two direct reports. In all honesty, we would like for him to retire because of the toxic attitude. May we ask him about his retirement plans?

A You may lawfully inquire about retirement plans for legitimate reasons like succession planning. The inquiries should not be persistent or coercive and should be free from even seemingly innocuous editorial comments like, “Oh, if I was your age, I’d already be retired.” Those kinds of remarks have been used as evidence of age bias. Generally, we recommend leaving the term “retirement” out of the conversation. You can tell the employee that you’re trying to plan for the future and ask him about his long-term plans without mentioning retirement.

Q We currently have two employees who are nursing. Do we have to provide two separate lactation rooms?

A Massachusetts and federal law require employers to provide nursing mothers a private space that is not a bathroom to express breast milk or breastfeed as well as reasonable breaks in which to nurse or express milk. The space should be free from intrusion by other employees, visitors, and the public, but there is no requirement that each nursing employee be provided her own separate space. To determine how best to accommodate nursing employees, you should communicate with them as part of the interactive process. They may be willing to work out a schedule for use of the space that doesn’t require you to establish more than one. You also may be able to install privacy curtains or dividers that allow the space to be used by more than one employee at a time.

Timothy F. Murphy and Erica E. Flores are attorneys at the firm of Skoler, Abbott & Presser, P.C. They can be contacted at 413-737-4753. You can also reach Murphy at tmurphy@skoler-abbott.com and Flores at eflores@skoler-abbott.com.