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Fictional Mailbag: When Is Medication Monitoring Appropriate Under The ADA

April 15, 2016

By Michael G. McClory

In the (fictional) mailbag today The Bullard Edge fields a question from Pete, the HR Manager of a local company.  Pete asks about an employee who attributed his recent performance problems to an eye condition.  During the fitness for duty process the employee’s doctor indicated that the eye condition will not interfere with job performance provided that the employee takes medication as prescribed.  Pete wants to know whether the company can require the employee to take the medication at work.  Here are Pete’s question and our response.

Pete’s Question:

You know how some companies invent breakthrough products by accident and become wildly profitable as a result?  I am thinking about 3M’s Post It Notes and Popsicles and the Slinky (remember those commercials), for example. 

Well, that is not the case with my company, Mid-Town Thermal.  The company originally sold heaters, but is best known for toasters.  This came about by accident.  The owner, who liked to tinker, was trying to develop a heat sleeve for shaving cream cans and accidentally discovered the heating element toasted bread – so he developed a toaster instead.  There are lots of other toasters on the market; while we sell lots of units, we are not a mega-company.

Joe Seafar works for Mid-Town Thermal as an inventory clerk.  That may not be the most descriptive title.  Joe assesses product orders and materials needed to manufacture the toasters ordered.  Much of what he does is online, although there is some paperwork and there is some telephone interaction. 

We think Joe knows his job well.  He has bad eyesight, though.  The general manager spoke to Joe over a year ago about some extremely off-base material projections that delay production and led to late delivery on a number of huge orders.  Joe apologized and revealed that he has rapidly deteriorating vision, that sometimes the numbers on the screen are difficult to see, and that the projection errors were a direct result of misreading charts (the numbers were blurry).  We went through a fitness for duty process and learned that Joe’s eyesight is sufficient, for now, to perform his job duties provided that he wears his glasses and takes medication as prescribed.  We purchased a larger monitor, too, in the hopes of making it easier for him to see things.

Joe’s performance stabilized for a short time.  However, more and more errors (some small and some significant) have crept back into his work.  We spoke to him and he apologized.  He said that his glasses make him look old and that he sometimes forgets to take his medication.

These errors are costing the company money.  The general manager wants to tell Joe that while these errors warrant termination the company is willing to offer him a performance plan that requires, among other things, that he wear his glasses at work and that he take his medication at work.  I am concerned about the arrangement.  It is probably legal, but I kind of remember something from an HR conference a few years back.  What do you think?  Can the company require Joe to take his eye medicine at work?

The Bullard Edge‘s Response:

We are glad you asked about this, Pete.  The answer is no and we will explain. 

The situation is fairly straightforward.  If Joe wears his glasses and takes his medicine then he will be able to see well enough to perform his inventory clerk duties.  While it is easy to see whether he is wearing glasses, there is no way to determine whether he is taking his medication unless you actually see him take it.  If he does not take his medication, it is likely that he will make material errors; these errors cost the company money, but do not present a direct threat of harm to Joe or others.

First, if this were a situation involving a direct threat of harm to Joe or others, then it might be the case that some form of medication monitoring would be appropriate.  See questions 5 and 18 to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA.

Second, in the situation involving Joe, where it is just performance at issue, medication monitoring is not appropriate.  Let’s look at the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA.  In this Q&A style Guidance, question 37 asks whether “it a reasonable accommodation to make sure that an employee takes medication as prescribed”.  The answer is no.  “No.  Medication monitoring is not a reasonable accommodation.  Employers have no obligation to monitor medication because doing so does not remove a workplace barrier.”  Thus, the burden is on Joe.  He is responsible for taking the medication that has been prescribed for him.  If he needs to take that medication during the work day and if he needs a break in order to take the medication, then the company would want to provide him with that break absent undue hardship (which is unlikely).  However, whether Joe takes his medication at work or away from work it is up to him to actually take the medication.

Third, in the event that Joe fails to perform his job duties up to standard because he has failed to take his medication, and in the event that no other form of reasonable accommodation was needed, then his medical condition is not going to excuse him from the consequences of that failure of performance.  Question 38 to the EEOC’s Enforcement Guidance on Reasonable Accommodation is directly on point.
Question 38: Is an employer relieved of its obligation to provide reasonable accommodation for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)?

Answer: No. The ADA requires an employer to provide reasonable accommodation to remove workplace barriers, regardless of what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job.

However, if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified.

Fourth, we want to draw your attention to an EEOC settlement from last week.  The agency had filed a lawsuit against an employer alleging that it required medication monitoring in violation of the ADA.  According to the EEOC’s press release, the employee had suffered an epileptic seizure at work and had missed time from work before being released.  However, the employer would not let him resume working until the employee agreed to its requirement that he take his anti-epileptic medication under observation during his shifts.  As part of the settlement, the employer agreed to pay its employee $33,000 and to post a notice about the lawsuit and employee rights under the ADA.

I hope this helps address your question related to Joe.  Best regards,

The Bullard Edge