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: Illegal Drug Use

June 24, 2008

[ADDRESS]

Dear ____:

This letter is in response to your emails to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) asking whether the Americans with Disabilities Act (ADA) permits the ____ Peace Officer Standards and Training Board (Board) to take steps to minimize the possibility that officers who are using androgenic anabolic steroids will endanger the public. Because the abuse of anabolic steroids may cause significant side effects (e.g., aggressive behavior, impaired judgment, delusional thinking), you ask whether the Board may deny, revoke, suspend, or cancel a peace officer’s certified status for using oral and injectable anabolic steroids “except as directed by a legitimate prescription written by a professional medical practitioner licensed to prescribe androgenic anabolic steroids.”¹ You emphasize that you are concerned about officers who may be misusing anabolic steroids for body building purposes and that the proposed rule would target only the oral and injectable forms of androgenic anabolic steroids, which are different from the corticosteroids (e.g., cortisone and prednisone) used to treat certain medical conditions.²

The EEOC enforces Title I of the ADA, which generally limits the ability of employers to make disability-related inquiries and conduct medical examinations of applicants and employees. Because you do not employ peace officers, but instead prescribe the rules by which they are certified, your inquiry does 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.

Based on the information you have provided, we believe that Title I of the ADA permits the Board to require law enforcement agencies to test peace officers for the illegal use of anabolic steroids and to report such use to the Board.

1. 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/sites/default/files/2020-06/Steroids-2020_0.pdf and the National Institute on Drug Abuse, National Institutes of Health, at https://www.drugabuse.gov/drug-topics/steroids-anabolic.

   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.

2. Disability-Related Inquiries and Medical Examinations Under the ADA 

   1. In General

      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. 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. A medical examination is a procedure or test that seeks information about an individual’s physical or mental impairment or health. Disability-related inquiries and medical examinations of employees generally are permitted only where they are job-related and consistent with business necessity. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees (July 27, 2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.at Q&A 5.

   2. Testing for Illegal Drug Use

      Because the ADA does not protect individuals currently engaging in the illegal use of drugs, asking about current illegal drug use is not a disability-related question and tests for the illegal use of drugs are not medical examinations. See 42 U.S.C. §§ 12114(a),(d); 29 C.F.R. §§ 1630.3(a), 1630.16(c). The illegal use of drugs includes the possession or distribution of drugs which are unlawful under the CSA and the unlawful use of prescription drugs, but does not include drugs taken under the supervision of a licensed health professional. The Board, therefore, could require law enforcement agencies to conduct tests to detect whether peace officers are using anabolic steroids illegally. If any officer tests positive for steroids, an agency may validate the results by asking about lawful use (e.g., whether the officer is using steroids “as directed by a legitimate prescription written by a professional medical practitioner licensed to prescribe androgenic anabolic steroids.”) See EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), available at http://www.eeoc.gov/policy/docs/preemp.html.

      Further, although the ADA generally requires employers to keep medical information about applicants and employees confidential, the ADA’s confidentiality provisions do not apply to disclosures of illegal drug use. See 29 C.F.R. Part 1630, App. § 1630.16(c). The Board, therefore, could require law enforcement agencies to report peace officers who are using anabolic steroids without a prescription. However, test results that reveal lawful use of steroids should be treated as confidential medical records. Id.

I hope this information is helpful to you. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.

Sincerely,

/s/
Reed L. Russell
Legal Counsel

Footnotes

¹ Although your first two proposals asked about the ability of an appointing authority to require peace officers to self-report and obtain a medical clearance for any steroid use, your most recent proposal specifically asks about taking steps to identify officers who are using steroids without a legitimate prescription.

² This letter uses the terms “anabolic steroids” and “steroids” to denote the androgenic anabolic steroids that are the focus of your inquiry.

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.

This page was last modified on August 12, 2008.

Return to Home Page