Student Note on the ADA and Prescription Drug Use in the Workplace

Just out: Elisa Y. Lee, An American Way of Life: Prescription Drug Use in the Modern ADA Workplace, 45 Colum. J.L. & Soc. Probs. 303 (2011).  The abstract:

The dramatic rise in prescription drug use in the United States over the past two decades, with its attendant risk of a myriad of side effects, has left employers struggling with ways to balance their interests in productivity and safety with potential liability for violating their employees' legal rights under the Americans with Disabilities Act. Under the ADA, an employer may claim a “direct threat” defense if it fired or refused to hire an employee based on a threat the employer determined the employee posed to safety and health in the workplace. In a recent case, several employees brought an ADA suit against their employer after they were fired from their safety-sensitive jobs for the mere legal use of certain prescription drugs their employer had decided posed a safety risk in its workplace. The district court denied the employer's motion for summary judgment on the ground that a reasonable juror could find that the employer's drug policy was broader than necessary because the employer automatically excluded all employees who took certain drugs from working at the company, without any regard for individualized circumstances as required by the ADA. However, the Sixth Circuit reversed the decision on the ground that the employees were not disabled and thus were not protected under the ADA. In light of the ADA Amendments Act of 2008 and other developments since the passage of the ADA in 1990 that call for expanded protection under the Act, this Note establishes the contours of the highly individualized inquiry employers and courts must perform in addressing the problem of prescription drug use in the workplace.