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What Can an Employer ask An Applicant about Illegal Drug Use

By October 17, 2011 February 19th, 2015 No Comments

iStock_000014996052XSmallWhat are we allowed to ask about current or prior use of illegal drugs?  Are there questions we are not allowed to ask an applicant? 

Response:
During the interview, asking candidates whether they are taking prescription drugs or have a history of using unlawful drugs would be prohibited under state and federal disability discrimination statutes.

Employers may ask whether the applicant can perform essential functions of the job.  Employer may not ask questions that are related to whether the applicant has a disability.

Interview questions relative to medications being taken may be risky, as they could be construed to determine whether the applicant is disabled.

Since an individual with a history of drug addiction can be protected as disabled under disability discrimination statutes, any question that asks a candidate to disclose whether he or she has previously taken illegal drugs, or whether he or she is using prescription drugs, would be prohibited.

Drug testing: if as the employer you test candidates for drugs (including prescription narcotics) in the drug screen, be careful with follow-up inquiries. Employers may not ask candidates to disclose any prescription medication (due to potential discrimination for disability). Prescription medication when prescribed is typically not a violation of a company’s drug free workplace policy.

If an applicant tests positive for a prescription narcotic (assuming the applicant was prescribed the medication), should the employer should not assume that employee cannot perform the job?
If there is a legitimate concern that the safety of the applicant would be compromised, the employer could share the job description with the employee to have the prescribing physician evaluate and indicate whether the medication would interfere with the ability to perform the tasks involved.  This must be done for all employees who test postitive for that medication.

For more information, please see www.eeoc.gov/policy/docs/qanda-inquiries.html and http://www.eeoc.gov/facts/jobapplicant.html. The EEOC has also issued an Enforcement Guidance on Pre-employment Disability-Related Questions and Medical Examinations that is useful as well, and is available at http://www.eeoc.gov/policy/docs/preemp.html for you to review.

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