Thursday, August 04, 2011

Thanks, JAN

On Tuesday, when I still hadn't heard back from the Job Accommodation Network, I called their hotline for guidance. I finally got an email response today:

Hi Aeylet,

Thank you for contacting the Job Accommodation Network (JAN). JAN provides technical assistance on job accommodations, the employment provisions of the Americans with Disabilities Act (ADA), and entrepreneurship for people with disabilities. Note that JAN is not a legal service and does not provide legal assistance or advice.

It's legal under the ADA for the employer to test for illegal drugs, so you might need to verify that you are not illegally using drugs, but unless the employer has a valid business reason, the employer would violate the ADA by rescinding a job offer based on the use of legally prescribed medication.


An employer may conduct tests to detect illegal use of drugs. The ADA does not prohibit, require, or encourage drug tests. Drug tests are not considered medical examinations, and an applicant can be required to take a drug test before a conditional offer of employment has been made. An employee also can be required to take a drug test, whether or not such a test is job-related and necessary for the business.

However, tests for illegal use of drugs also may reveal the presence of lawfully-used drugs. If a person is excluded from a job because the employer erroneously "regarded" him/her to be an addict currently using drugs illegally when a drug test revealed the presence of a lawfully prescribed drug, the employer would be liable under the ADA. To avoid such potential liability, the employer would have to determine whether the individual was using a legally prescribed drug. Because the employer may not ask what prescription drugs an individual is taking before making a conditional job offer, one way to avoid liability is to conduct drug tests after making an offer, even though such tests may be given at anytime under the ADA. Since applicants who test positive for illegal drugs are not covered by the ADA, an employer can withdraw an offer of employment on the basis of illegal drug use.

If the results of a drug test indicate the presence of a lawfully prescribed drug, such information must be kept confidential, in the same way as any medical record. If the results reveal information about a disability in addition to information about drug use, the disability-related information is to be treated as a confidential medical record.

I hope this is helpful. Feel free to contact JAN (AskJAN.org) in the future if you have additional questions related to accommodations. Thank you for using our service.

Not much of that is relevant to my question. I wrote back:

Thank you for your response, but I did not ask about drug testing per se. I asked if the employer is allowed to ask me about my psychiatric history during a pre-employment physical. I called the JAN hotline and was told employers may so, but they can't rescind an offer of employment based on that disclosure. When I went for my physical yesterday, the doctor said I would need a letter from my psychiatrist stating that I am fit for work. He made a point of telling me that they ask everyone with a psychiatric history for this, because a few years ago, two residents and an attending committed suicide. As long as they ask everyone for it, they're allowed to ask.

Unfortunately, my psychiatrist is on vacation for the next few weeks, but the doctor said all I have to do is bring my medication bottles when I go back to have my TB test read. He will probably ask me a few questions to make sure I have no current suicidal or homicidal ideation. I have a prescription for Klonopin, and I know the toxicology results might show positive for benzodiazepines, so I'm bringing that bottle in along with my lithium and antidepressants.

I appreciate the work your organization does. It definitely set my mind more at ease.

This time the response came more quickly:

Oh sorry about that! I read your question wrong. I hope you are able to work things out and keep the job. If not, please don't hesitate to contact us for additional information.

I sure will. Tomorrow I go back for the TB test reading, and hopefully the doctor will grant me psychiatric clearance.

A dear friend of mine (she knows who she is) told me she was hospitalized and attended intensive outpatient treatment at a program headed by a woman who has bipolar disorder. This woman was loved and respected by her patients, employees, and peers. I would love to be that open about my diagnosis. Maybe some day I'll be able to.
Copyright (c) "Ayelet Survivor"

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