Ask the ExpertAsking Employees to Disclose a Prescription
hri_Admin Staff asked 4 years ago

Hello, 
Can you ask an employee to disclose that they are using a prescription drug that could impair their ability to do their job or their safety? I know that you cannot ask for specifics as to the diagnosis or details, but with legalization of marijuana on the horizon, if an employee has a prescription for medical marijuana, asking employees to disclose that they have this prescription gives us the ability to accommodate them, if necessary.
Thanks  

1 Answers
Glenn Demby Staff answered 4 years ago

That is a great and very important Q.
1. Employers can’t make general inquiries about the prescription meds their employees use–marijuana or otherwise.
2. Employers can make such inquiries when they are directly related to job performance.
3. Asking employees if they use any IMPAIRING meds is probably acceptable as long as: a. You don’t ask which drug(s); b. You don’t ask the employee to disclose the diagnosis or  medical condition for which he takes the drug; c. the employee performs a safety-sensitive job; and d. You scrupulously keep the information private and confidential.
4. Implementing a Fitness for Duty Policy (like the one in HRI) puts you in a stronger position to make inquiries about impairing meds. (Check out the piece in HRI for a full explanation)
The ideal solution: encourage employees to disclose the meds they use (or addictions) VOLUNTARILY. The approach should be constructive, not punitive. Your purpose is not to discipline but help. The 2017 Supreme Court case Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), June 15, 2017 is  instructive. It’s about an Alberta coal mine which had a so called “no free accident” policy requiring workers to disclose any drug addictions or dependencies. Workers who came forward were offered treatment, not discipline; workers who didn’t disclose and later failed post-incident drug testing got fired. A cocaine addicted machine operator who decided not to disclose and take his chances got into a work accident. The post-incident test came back positive for drugs. So the company fired him. The Supreme Court upheld the decision and the policy. The addiction was no excuse. The worker knew how dangerous the mine was and made a deliberate decision not to come forward. So he couldn’t beef when his gamble didn’t pay off.
Although the Stewart case is about addiction, the same “voluntarily disclose and nobody gets hurt, but you’re in big trouble if you conceal and we find out later” would apply to your situation, at least if your workplace is a dangerous one and/or the employees covered have safety-sensitive jobs.
Hope that helps. Glenn