Law Office of David Miklas, P.A.

The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging the employer’s conduct violates the Americans with Disabilities Act (ADA). The ADA prohibits discrimination based on a disability. The EEOC investigated the case, found cause to believe that the employer violated the ADA. When the employer failed to agree to the EEOC’s demand for a settlement, the EEOC then filed a lawsuit in U.S. District Court (Civil Action No. 3:18-CV-01786-C).

The EEOC recently announced that the employer agreed to pay $50,000 to settle the disability discrimination lawsuit.

Can a Florida company require an employee to disclose medication that could affect her work performance?

A data entry clerk had been on medical leave for carpal tunnel syndrome. When she reported back to work, the employer presented her with “Return to Work Agreement” and asked her to sign it. This agreement, which reflects a company-wide policy that all employees must follow, required that the employee report to her supervisor each and every medication she is taking, over the counter and prescribed, that “could” affect her work performance.

The employee felt that requiring her to sign such an agreement was a violation of her rights. In addition to requiring that all such medications be disclosed to management, all employees can only take the medication if the supervisor “clears” it first.

When the employee refused to sign the agreement promising to reveal all medications that could affect her job performance, she was sent home and ultimately received a termination letter in the mail.

Labor & Employment law - Employers only

Nineteen years ago the EEOC issued an Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).

This should not be a surprise to Florida employers. This EEOC guidance specifically provided guidance to business owners in Florida as follows:

Q: May an employer ask all employees what prescription medications they are taking?

A: Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. 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. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In this case the EEOC said that the employer’s broad requirement violated the prohibition against medical inquiries of employees under the ADA.

In addition to paying $50,000, the employer entered into a three-year consent decree that prohibits future discrimination and retaliation. In addition to the monetary relief, the company must disseminate its revised policy to all employees; provide annual training regarding the very limited new rule as to medication disclosures; provide avenues for reporting violations of the new policy; and warn of discipline for any manager who continues the prior discriminatory practices.

An EEOC spokesperson stated that workers with disabilities that may not be obvious, but become known through identification of certain medications, should be allowed to work without being subject to exclusion or limitations imposed because of myths, fears and stereotypes about such conditions,” and “these types of personal disclosures are exactly what the ADA was enacted almost 30 years ago to prevent,” and “blanket requirements of disclosure like the one presented here result in unlawful overreaching, eliciting information about an employee’s disabilities that may not otherwise be disclosed. By so broadly inventorying and examining medications, an employer ignores prohibitions in the federal law against eliciting information about a worker’s health.”

Florida employers are reminded that medical inquiries are a hot button issue that can get the business sued.

If you need any assistance in handling disability issues concerning your Florida business or if you need guidance in any employment policies, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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