EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Medical Exams and Inquiries

September 10, 2008

[ADDRESS]

Dear____,

This letter is in response to your recent email to the Equal Employment Opportunity Commission (EEOC or Commission) indicating that our previous letter failed to answer your initial questions about whether the Americans with Disabilities Act (ADA) permits the ____ Board (Board) to take certain steps to detect whether peace officers are using androgenic anabolic steroids. ¹ Specifically, you initially asked whether the Board may deny, revoke, suspend, or cancel a peace officer's certified status for (1) failure to notify the agency appointing authority, within 72 hours of initial use, that he has used or is using an injectable or oral anabolic steroid, or (2) performing the duties of a peace officer with anabolic steroids in his body without first obtaining and maintaining medical clearance from a Board-trained physician. ²

The EEOC enforces Title I of the ADA, 42 U.S.C. §§ 12111, et seq. Because you do not employ peace officers, but instead prescribe the rules by which they are licensed, your questions do not directly implicate Title I of the ADA. ³ However, Title I is relevant to the extent that law enforcement agencies in your state will have to implement your procedures. In this sense, your procedures implicate 42 U.S.C. § 12112(d) and accompanying EEOC regulations at 29 C.F.R. §§ 1630.13 and 14, which limit an employer's ability to ask disability-related questions or require medical examinations of applicants and employees. Based on the information you have provided, and for the reasons that follow, we believe that Title I of the ADA allows law enforcement agencies in your state to require peace officers to report their use of steroids. We also believe, however, that law enforcement agencies may not require officers who are lawfully using anabolic steroids to be examined by a Board-certified physician unless there is reason to believe that they are unable to do their jobs without posing a direct threat.

A. Androgenic Anabolic Steroids

Androgenic anabolic steroids are synthetically produced variants of the naturally occurring male hormone testosterone and are legally available only by prescription to treat severe illness, certain types of anemia, and conditions that occur when the body produces abnormally low levels of testosterone, such as some types of impotence. Athletes and others, however, have been known to abuse anabolic steroids to enhance performance and improve physical appearance. Anabolic steroids can be taken orally, injected intramuscularly, or rubbed on the skin. Typically, steroids are not used continuously, but are used in cycles of weeks or months ("cycling"). Cycling involves taking multiple doses of steroids over a specific period of time, stopping for a period, and starting again. Users often combine several different types of steroids to maximize the drugs' effectiveness and minimize their negative effects. See generally U.S. Drug Enforcement Administration, Drug Information, Steroids, at https://www.dea.gov/factsheets/steroids and the National Institute on Drug Abuse, National Institutes of Health, at https://www.drugabuse.gov/publications/drugfacts/anabolic-steroids.

The major side effects from high doses of anabolic steroids can include liver tumors and cancer, jaundice, fluid retention, cardiovascular diseases, heart attacks, strokes, and high blood pressure. Scientific research also shows that aggression and other psychiatric side effects, including extreme mood swings, manic-like symptoms leading to violence, and depression, may result from abuse of anabolic steroids. Users also might experience extreme irritability, delusions, and impaired judgment. In February 1991, federal law placed anabolic steroids in Schedule III of the Controlled Substances Act (CSA), thereby making the possession or sale of anabolic steroids without a valid prescription illegal. Id.

B. Self-Reporting Steroid Use

As we noted in our previous letter, Title I of the ADA strictly limits the circumstances under which employers may make disability-related inquiries or require medical examinations of applicants and employees. ⁴ Disability-related inquiries are questions that are likely to elicit information about a disability. Most questions about lawful drug use (e.g., whether an applicant or employee currently is taking any prescription drugs or medications, or whether he has taken any such drugs in the past) are disability-related inquiries. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees (July 27, 2000)(hereinafter Guidance), Q & A 1, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. Because anabolic steroids can be lawfully prescribed to treat severe illnesses that may be disabilities, we believe that broadly asking about steroid use or requiring officers to report such use is a disability-related inquiry, because the inquiry is not limited to illegal use of such steroids. See, e.g., Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997) (employer failed to prove that its policy of requiring employees to report their use of prescription medications was lawful by claiming that it was only concerned about drugs that were illegally obtained or being used in an improper manner). ⁵

As stated in our previous letter, disability-related inquiries and medical examinations ⁶ of employees generally are permitted only where they are job-related and consistent with business necessity. We explained that usually this means that an employer knows about a particular employee's medical condition, has observed problems or learned about them from a credible third party, and reasonably can attribute the problems to a medical condition. Guidance at Q&A 5, 6.

In addition, however, the Commission has stated that an employer may require employees in positions affecting public safety, which include police officers, to report the use of prescription medications when it is able to demonstrate that the inability or impaired ability to perform job-related tasks may result in a direct threat (i.e., significant risk of substantial harm), even in the absence of evidence that a particular employee is having performance problems. Id. at Q&A 8. Because individuals using anabolic steroids may experience significant side effects (e.g., extreme mood swings or impaired judgment), we believe that a law enforcement agency could require peace officers in positions affecting public safety (as opposed to individuals designated as peace officers but who perform only administrative duties) to report such use.

C. Requiring Individuals Using Steroids to Obtain Medical Clearance

The legality of a policy under which the Board can deny, revoke, suspend, or cancel the certification of a peace officer who fails to report the use of androgenic anabolic steroids within 72 hours of initial use or require a peace officer using androgenic anabolic steroids to obtain medical clearance from a Board-trained physician is determined by reference to Title II of the ADA, not Title I. If the policy is lawful under Title II, we believe an employer may take steps necessary to ensure its implementation without violating Title I, such as disclosing to the Board those employees who fail to self-report their use of steroids and those peace officers known to have performed their jobs without first obtaining the necessary medical clearance. See 29 C.F.R. Part 1630, App. § 1630.1(b) ("[The ADA] does not preempt State, county, or local laws, ordinances or regulations that are consistent with this part and are designed to protect the public health from individuals who pose a direct threat . . . to the health or safety of others.").

Absent a policy like the one you have described, an employing agency would be free to discipline individuals found to be using steroids illegally, because the ADA does not protect individuals currently engaging in the illegal use of drugs when an employer acts on the basis of such use. 42 U.S.C. § 12114(a). However, if an agency learns through self-reporting that an officer is lawfully using anabolic steroids under a doctor's prescription, it may require the officer to obtain certification of his ability to work and/or may require him to submit to a medical examination only if there is reason to believe that the officer is unable to perform his job duties or would pose a direct threat because of such use. Guidance at Q&A 5. If a medical examination by the agency's health care professional is necessary, the agency must pay all costs associated with it. Id. at Q&A 12.

I hope this information is helpful to you.

Sincerely,

/s/
Reed L. Russell
Legal Counsel

Footnotes

¹ This letter uses the terms “anabolic steroids” and “steroids” to denote the androgenic anabolic steroids that are the focus of your inquiry. You state that the Board is concerned only about the use of oral and injectable forms of androgenic anabolic steroids, which are different from the corticosteroids (e.g., cortisone and prednisone) prescribed to treat certain medical conditions.

² In an email on April 16, 2008, you asked for comments on a proposal that would allow the Board to require peace officers to self-report their use of steroids, presumably even if they were taking them by prescription, and obtain medical clearance before being allowed to continue to work. Before we could address that inquiry, however, you sent another email specifically asking whether law enforcement agencies could take steps to identify officers who are using steroids without a legitimate prescription. On June 24, 2008, the EEOC issued a letter addressing that inquiry, stating that because the ADA does not protect individuals currently engaging in the illegal use of drugs, the Board could require law enforcement agencies to test peace officers for the illegal use of steroids and report such use to the Board.

³ The Board's activities with respect to the certification of peace officers are governed by Title II of the ADA, which the Department of Justice enforces.

⁴ Because you specifically ask about a proposal that would apply to individuals already employed as peace officers, this letter will focus on the rules applicable to current employees. For rules concerning disability-related questions and medical examinations prior to employment, see EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), available at http://www.eeoc.gov/policy/docs/preemp.html.

⁵ Asking an employee, or requiring him to self-report, whether he is using anabolic steroids illegally or without a doctor's prescription, however, is not a disability-related inquiry; rather, it is an inquiry concerning whether the employee is currently engaging in the illegal use of drugs.

⁶ A medical examination is a procedure or test that seeks information about an individual's physical or mental impairment or health. Id.at Q&A 2. EEOC has identified a number of factors for determining whether a test or procedure is a medical examination. Id.

This page was last modified on Octubre 30, 2008.

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