The Network was recently contacted by a state health department drug and alcohol program about whether medical record privacy rules permit or forbid an employer to ask a job applicant to disclose his or her history with drug addiction.
The Network researched the question and found that medical privacy rules do not affect an employer’s right (or lack thereof) to inquire about past drug addiction in a job applicant. These rules apply to entities, such as hospitals and practitioners who hold, or have access to, medical records; not to interactions between a potential employer and an applicant.
However, under the Americans with Disabilities Act (ADA) an employer may not ask about past addiction unless and until the point in an interview process at which there is a conditional job offer. Because past addiction is a covered disability under the ADA, it is forbidden for an employer to ask whether an initial applicant has been addicted to drugs or has received treatment for drug addiction.
However, because past addiction is a covered disability under the Americans with Disabilities Act (ADA), an employer is not allowed to ask whether an applicant has been addicted to drugs or has received treatment for drug addiction unless and until the point in an interview process at which there is a conditional job offer.
Interestingly, ongoing drug addiction is not defined as a covered disability under the ADA, and as a result, an employer may ask about prior illegal drug use so long as the employer is not attempting to determine if the applicant has the disability of past addiction. Asking about casual drug use is legally safe territory for an employer, but asking about addiction is not. The case law on the matter isn’t substantial, but the U.S. Equal Employment Opportunity Commission provides guidance with examples of permissible and impermissible questions.
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