An increasing number of employers are requiring employees and applicants to take drug tests. Various antiepileptic medications may show up on these tests, thereby forcing the individual to disclose his or her medical condition to the employer or risk being mistakenly labeled a drug abuser. For the vast majority of employees, the legal system provides little or no protection from drug screening. The Americans with Disabilities Act does not prohibit drug testing. Although the U.S. Constitution protects against unreasonable search and seizure, and thus has been found to place limits on the scope of drug testing by government agencies, it will usually not apply to the actions of private employers.
The Epilepsy Foundation of America's national Board of Directors reaffirmed the following resolution at its December, 1990 meeting:
The Epilepsy Foundation of America is concerned about the problem of drug abuse in society; drug abuse can cause seizures and even epilepsy in susceptible individuals. An important control measure is the specific testing for the detection of drug abusers. However, the Foundation is concerned about the adverse effect that drug testing may have on individuals. Drug testing may:
- Unnecessarily and unjustifiably require disclosure of a health condition which may have no impact on the job performance of the individual;
- Inappropriately affect the individual's employment status through such disclosure;
- Affect the privacy and employment future of individuals through inappropriate and unregulated release of confidential medical records; and
- Be unreliable without appropriate confirmatory testing and may be subject to misinterpretations.
The Foundation believes job applicants should not have to disclose having a seizure disorder (epilepsy) or that they are taking medication unless either fact is relevant to their ability to do the job or their qualifications for the job.
When faced with drug testing or when an individual with epilepsy has tested positive for a medication, that individual should always be given the opportunity to present medical evidence of his or her condition and its treatment. A positive test should always be confirmed by a second independent test using a different testing methodology. The individual should be given a copy of the complete test results in writing, and should be given an opportunity to appeal any adverse employment decision based on such testing. Drug tests should not be required until the individual has been offered the job in question.
Rules governing drug testing and disclosure of information regarding legitimate medication use should include specific safeguards protecting medical confidentiality and prohibiting discriminatory job action, unnecessary re-assignment, or termination of employees based on such information.