Question: Are we allowed to ask employees or applicants whether they’re taking prescription drugs?
Answer: No. In most instances you are prohibited from asking employees and applicants about any prescription medicines they are taking. This type of medical-related inquiry is considered confidential medical information and is protected under the federal Americans with Disabilities Act (ADA) and potentially under state privacy laws.
In very limited circumstances, you may have the right to ask employees about prescription drug use if you can demonstrate an employee’s use of prescription drugs is “job related and consistent with business necessity.” For example, this would not apply to general office or low safety risk positions, but it may apply to positions that are safety sensitive, such as drivers who are covered under the Federal Motor Carrier Safety Act (29 CFR 382.213).
Regardless, this inquiry should not take place without first reviewing the circumstances with legal counsel. You should also review your state’s laws in case there are additional requirements and restrictions.
In states with legalized medical marijuana, this issue becomes hazier. Read Clearing the Haze about Marijuana in the Workplace or a previous Q&A on the topic for more information.