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Beware overly broad drug policies, which could violate ADA rules about revealing a disability

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in Discrimination and Harassment,Firing,Human Resources

The 8th Circuit Court of Appeals has handed a significant victory to the EEOC, allowing the agency to continue to supervise settled cases. The impact: Employers should expect continued EEOC charges even after the ink is dry on their settlements.

Recent case: For 15 years, Product Fabricators had a policy that required employees to tell their supervisors anytime they took certain medications. The list of meds was long and included any drug that could cause dizziness or drowsiness or affect an employee’s senses, motor ability, judgment, reflexes or ability to perform a job. The penalty for not telling a supervisor about medication use was termination.

Dennis Anderson, a shear operator, missed several days of work because of back pain. He returned to work with no restrictions, but took off more time after allegedly reinjuring his back. That’s when he admitted he had been taking medications that he hadn’t told his supervisor about. Anderson was fired.

The EEOC took up his case, arguing that the policy violates the ADA because requiring employees to report medication use could reveal a disability. It called the medication reporting mandate an unlawful medical inquiry.

The parties agreed to settle the case but disagreed on what terms to include. The EEOC wanted the court to approve a settlement that allowed the agency to monitor for two years Product Fabricators’ ­promise to drop the drug policy.

When the trial court ruled that wasn’t necessary, the EEOC appealed.

The 8th Circuit reversed, finding that the EEOC was within its rights to demand monitoring. It pointed out that it wasn’t just Anderson’s rights at stake, but all other disabled employees who might not want Product Fabricators to know they were disabled and needed medication. (EEOC v. Product Fabricators, No. 11-1241, 8th Cir., 2012)

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