The Wall Street Journal - 23 January 1996
Ellen E. Schultz, Staff Reporter of The Wall Street Journal

In a decision filed last week, the judge found that Cheyenne Mountain Conference Resort in Colorado Springs couldn't require employees to tell supervisors what prescription medications they take.

The judge concluded that such a policy violates the ADA, which prohibits disability-related inquiries unless the inquiry is job-related and consistent with business necessity.

The case is one of the first that addresses the issue of whether the ADA limits employers from gathering prescription-drug information, a practice that is springing up in workplaces as employers toughen their drug and alcohol-testing policies. The portion of the ADA that pertains to inquiries about disabilities became effective in 1992.

In the past, some employees have challenged similar workplace policies using privacy arguments, but courts generally haven't been receptive. Indeed, in this case, the plaintiff also argued that her common-law right to privacy had been violated, an argument the judge rejected.

An employee of the hotel, using the pseudonym "Jane Roe," filed suit last July requesting that the court enjoin the employer from enforcing its policy, which states that ". . . prescribed drugs may be used only to the extent that they have been reported and approved by an employee supervisor . . ." Ms. Roe noted in her complaint that she takes medications for asthma and other conditions.

The resort, in its subsequent motion for summary judgment, maintained it was entitled to request information about prescription drugs as part of its drug-testing program, pointing out that the ADA permits drug testing.

Nonetheless, Judge Clarence Brimmer of Cheyenne, Wyo., who issued the ruling in the U.S. District Court in Denver, concluded that the resort's policy violated the ADA: "A policy that requires employees to disclose the prescription medication they use would force the employees to reveal their disabilities [or perceived disabilities] to their employer."

In depositions, resort managers said the prescription-drug information would be reviewed by a committee that would include the hotel general manager, department head, and human-resources director.

Craig Cornish, a Colorado Springs attorney who represented Ms. Roe, said that if employees are required to disclose that they are taking antidepressants, birth-control pills, or medications for such things as heart conditions and high blood pressure, they might choose not to take needed medications. "This policy is a threat to public health, and an assault on the dignity and medical privacy of all employees," he said.

But Fredo Killing, the resort's general manager, maintains that supervisors have a valid need to know what prescriptions employees are taking. "We have bellmen who drive vans and could be taking medication for epilepsy. Obviously, if they have an accident, it's our responsibility."

Nevertheless, Mr. Killing said the resort won't appeal the judge's decision. He said the resort will discuss changing its policy to meet the requirements of the ADA with its lawyer.

So far, the courts have been inclined to provide employers carrying out drug-testing programs wide access to employee medical information. In 1992, the Tenth U.S. Circuit Court of Appeals in Denver sided with ConAgra Poultry Co., a unit of ConAgra Inc., against an employee who refused to disclose whether she used any prescription drugs.

The employee in that case, Carmella Mares, a benefits clerk, agreed to be tested for drugs, and indeed already was submitting to routine random drug tests required for her position as a Navy reservist. But Mrs. Mares declined to disclose whether she was taking prescription or over-the-counter medications, on the grounds that the policy violated her rights to privacy. She was fired.

In the wake of that case, employers appeared to have few limits on the breadth of medical information they could require employees to provide in the course of maintaining drug-testing policies.

Another case that has dealt with the prescription-drug issue and the ADA is Loder vs. City of Glendale. The city of Glendale, Calif., required all job applicants to take drug tests and to disclose the prescription drugs they were taking. The city argued that the identification of medications being taken didn't seriously invade privacy because applicants also were asked to disclose their gynecological history and whether they had or ever had heart trouble, depression, alcohol problems, jaundice and other problems.

But the California Court of Appeals said in 1994 that the requirement to disclose prescription-drug use was an invasion of privacy under the California constitution and violated the ADA.

"If the applicant responds that he or she is taking AZT, insulin or tamoxifen, the employer has, in effect, been informed that the applicant has been diagnosed as being HIV positive, or having diabetes or breast cancer, respectively. . . . This privacy intrusion is not only unnecessary, it is illegal" under the ADA, which says job applicants may not be asked about disabilities, the court said.

The California Supreme Court last year agreed to hear an appeal by the city of Glendale.

Mr. Cornish, Ms. Roe's attorney, said a prescription-drug disclosure requirement couldn't possibly be a valid component to testing for illegal drug use. "It does not test body fluids for the presence of drugs, and it's not intended to discover any illegal drugs used by employees," he said. "It's intended to discover only legally prescribed drugs, and therefore has nothing to do with testing employees for illegal drug use."

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