Providing Over-the-Counter Medications at Work Print

The use of over-the-counter medications, such as pain relievers and cold medications, may allow an employee to remain at work despite a nagging headache or a dripping nose.  Given the benefit of keeping an employee working productively, should an employer provide over-the-counter medications to employees suffering from minor ailments at work?  We believe the answer is no for several reasons:

1.  The medication may result in an unintended consequence, triggering lawsuits against the employer.  The employee could sustain an allergic reaction to the medication.  The medication could cause drowsiness, resulting in a workplace accident or an accident while traveling after work.  The employee could take the wrong dose or choke while attempting to swallow the pills.

2.  The employee may feel pressured by the manager or supervisor into taking the medication, even if the employee does not want to take that particular type or dose of medicine being offered. 

3.  Providing medicine may open the employer to charges that the employer knew the employee was disabled.  For example, if an employer regularly gave an employee pain medication at work, then subsequently terminated the employee, the employee may have a claim of disability discrimination, arguing that the employer knew of the disabling condition by virtue of regularly supplying pain medication to the employee.

A recent article by an employment consultant counseled against providing over-the-counter medications to employees, but recommended that employers adopt a policy requiring employees to notify their supervisor if they are taking medications, including over-the-counter medications, that may impair their ability to perform their work or cause drowsiness.  We advise against advising all employees to divulge the medications they are taking.  Generally, an employer may not ask all employees what prescription or over-the counter medications they are taking, because such information is confidential.  Asking all employees about their use of medications is not job-related and consistent with business necessity. 

In limited circumstances, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions of public safety to report when they are taking medication that may affect their ability to perform the essential functions of their job.  Under those limited circumstances, however, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform the essential functions will result in a direct threat.  It is only in those limited circumstances that an employer should require an employee to provide a list of the medications being taken that present a direct threat. 

That same article also suggested adding one or two basic over-the-counter medications to the company’s first aid kit that employees may access.  This still has the taint of being employer supplied medications, and again we would recommend against doing so. 

We recommend that employees be responsible for maintaining and controlling their own pain and cold medications.  That way the employee is the one controlling when and what is taken. 

Feel free to contact any of the TMF attorneys to discuss this or any other legal matter.

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