Under state and federal laws, it is illegal to discriminate against job applicants on the basis of their disabilities. Beyond that general statement, like most laws, things get cloudier with details. One of those details is drug testing and physical exams of NJ job applicants after a job is offered but before you start working.

It is unlawful for an employer or other entity covered by the federal Americans with Disabilities Act (such as a union or job placement agency) to:

• Treat a qualified job applicant with a disability unfavorably (someone who can do the job, with or without a reasonable accommodation, and who has a physical or mental condition that substantially limits a major life activity — such as walking, talking, seeing, hearing or learning).
• “Unfavorable” treatment is defined to include a person with a disability, one who is regarded as having a disability, someone with a history of a disability, or a person who is “associated” with someone with a disability (a family member or spouse).

The Americans with Disabilities Act (ADA) requires a potential employer to provide a reasonable accommodation to a job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (known as an “undue hardship” under the law).

Prospective employers are prohibited from asking job applicants about medical issues, taking medical exams, or identifying a disability. The potential employer must not, under penalty of the law:

• Ask a job applicant to answer medical questions or take a medical exam prior to the prospective employer’s making a job offer.
• Ask job applicants if they are disabled or to give details about even an obvious disability.
• Ask job applicants if they can perform the job with or without a reasonable accommodation.

Proper Use of Medical Questionnaires and Medical Exams

After an applicant receives a job offer, the employer may properly and reasonably condition that offer on the applicant answering certain medical questions and/or successfully passing a medical exam, but only if all new employees in the same type of job have to do the same. A potential employer can’t single out applicants for special mistreatment who are believed to be disabled or who admits to a disability.

As part of the hiring process, someone offered a job may be screened for illegal drug use.

• Casual use of illegal drugs is not considered a disability under the ADA.
• For a drug addiction to be a disability under the ADA and for a person to get legal protection, the addiction would need to create a substantial limitation on one or more of the applicant’s major life activities.
• The employer may prohibit the applicant from currently using illegal drugs that affect job performance or safety of the applicant or prospective co-workers.

In New Jersey, under certain circumstances, individuals may legally use marijuana for medical reasons. This makes the drug legal in the state in limited circumstances, but it remains illegal under federal law. State law doesn’t require employers to accommodate a qualified patient’s use of medicinal marijuana in the workplace, but bills have been introduced in the state Legislature to change that.

Use of some prescription drugs may be a problem for an employer

An employer may want to prohibit employment of people using certain prescription drugs because they fear, correctly or not, use of such drugs may interfere with a worker’s ability to do the assigned job. Asking all employees about all their use of prescription medications would violate the ADA but, if an employer believes those using a particular drug may pose a threat to the safety of themselves or others or affect their ability to perform their job, a limited inquiry is legally acceptable.  At that point, the prospective employee should be seeking the counsel of experienced lawyers who work regularly with employees.   This is not the type of thing the prospective employee should be doing on his or her own.

Drug testing programs that include legally prescribed drugs are generally acceptable under the ADA.

• An employer can’t have a general policy excluding anyone testing positive for a prescribed drug.
• If there is a positive test, an employer can ask the employee to explain the positive result.
• Those getting job offers can be asked to disclose their use of prescription drugs that may adversely impact their ability to perform job duties.

After the prospective employee’s disclosure, the potential employer needs to decide, on a case-by-case basis, if it can make a reasonable accommodation that will enable the person to do their job, be hired, and work productively.

• The potential employer should ask for a medical certification concerning the impact of the medication on the person’s ability to safely perform essential job functions.
• That certification enables the potential employer to engage in an interactive process where it and employees talk about their needs.
• If the certification from the physician states the use of the drug won’t have an impact on the ability of the person to perform the essential functions of the job, with or without reasonable accommodation, the employer should accept that opinion.
• The potential employer can decide, based on the prospective employee’s specific situation, whether a reasonable accommodation is possible, and if so, what it can be.
• If the employer withdraws the job offer, then the prospective employee could consider legal action to determine if the ADA has been violated.

Under these circumstances, if the issue is side effects of a prescription and a reasonable accommodation is needed, here are some questions that should be asked:

• Could the dosage be changed to reduce the side effects while still helping the job applicant?
• Might the timing of taking the drug be changed to reduce the effects during work?
• Could non-essential job functions most impacted by the prescription use be done by others, or in a different way, to limit how the use of the drug could impact job performance while not imposing an undue hardship on the employer?
• Is there another open job the applicant could fill that doesn’t present concerns about prescription drug use?

If you or someone you know may have employment law issues relating to the ADA, medical exams for work, reasonable accommodations, prescription or other drug use and work, or any similar concerns, then you or they need experienced employment law attorneys for workers on your or their side.  These cases present complicated factual issues (job duties and how disabilities or prescription drug use may or may not affect them), but the legal issues could get complex too, which makes it all the more important that you contact our office if you believe your disability or your use of prescription or street drugs is interfering with your ability to get or keep a job.

Call today.  You will be glad you did.