(This story was corrected and updated)
The Equal Employment Opportunity Commission is asking a federal judge to order TriHealth Inc. to disclose the name of a business client that forces its employees to tell what drugs they take and why they take them.
Such a requirement, charged EEOC Commissioner Chai Feldblum in March 2016, violates the Americans with Disabilities Act because it isn’t job-related and isn’t “consistent with business necessity.” The charge surfaced publicly, 11 months later, only because the EEOC wants a federal judge to force TriHealth to produce documents showing the extent of mandatory drug-use disclosures by the unnamed company’s employees over the last four years.
“In the course of its investigation, the EEOC issued a subpoena to TriHealth seeking documents relating to the investigation of the charge,” the EEOC states in a Feb. 1 court filing. “TriHealth refuses to respond to this subpoena.”
Based in Cincinnati, TriHealth employs about 12,000 people at more than 130 locations in the region. It owns the Bethesda hospitals, Good Samaritan Hospital and numerous doctors practices, rehab hospitals and health centers. The department of the unnamed company that receives its employees’ medication usage is managed and staffed by TriHealth.
Last August, the EEOC sent TriHealth a subpoena for the names of all employees who self-disclosed their prescriptions and over-the-counter drugs to the company going back to Jan. 1, 2013. It also asked for the drugs used and the records created when the disclosures were made.
Months went by, and the EEOC told TriHealth it would settle for the disclosure documents alone. That offer was spurned, as was the agency’s later offer to rummage through the company’s file itself or through a vendor, the EEOC says.
TriHealth spokesman Joe Kelley says the company refused to comply with the subpoena because TriHealth doesn’t own the records containing the requested information.
“They belong to another company,” Kelley says. What company? Kelley says he is “not allowed” to name it.
David Torchia, a Cincinnati attorney specializing in employment law, said the Americans with Disabilities Act provision against forced disclosure of medication usage exists to protect workers’ rights.
“It would require employees to disclose conditions that are not affecting their work,” he says. “I think there’s an invasion of privacy there.”
Employers might be justified in asking about medication usage if workers were falling asleep on the job or overtly demonstrating unfitness for duty, Torchia says. “But if they’re just making a blanket request without any objective reason behind it, I think that’s a problem.”
On Feb. 8, U.S. Magistrate Stephanie Bowman ordered TriHealth to explain why it shouldn’t have to comply with the subpoena and give the employee records to the EEOC. The show-cause hearing is scheduled for March 29 in Cincinnati.
CONTACT JAMES McNAIR: jmcnair@citybeat.com, 513-914-2736, @jmacnews on Twitter
This article appears in Feb 15-22, 2017.
