identification card, provided that such reasonable accommodation would not:


a. Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or b. Prohibit the employee from fulfilling any and all of his or her job responsibilities.”


New York’s law, at S 3369(2), entitled


“Non-Discrimination,” provides, “Being a certified patient shall be deemed to be having a ‘disability’ under Article Fiſteen of the Executive Law (Human Rights Law), Section Forty-C of the Civil Rights Law . . .” Te New York statute goes on to state that, “Tis Subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. Te Subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.”


Americans with Disabilities Act: State mandatory law compliance and state marijuana law issues are certainly concerns that company program managers must deal with. However, the issues associated with


the Americans with Disabilities Act (ADA) may be far more problematic. Te many complex issues related to the ADA are directly impacted by the prescription drug epidemic in this country.


The Problem: Prescription Drug Epidemic


It is pure foolishness to think that prescription drug abuse is not affecting your company. Te CDC has called this “the fastest growing drug problem in America.”5


It has reported that:


• 3 in 4 prescription overdoses are due to prescription opiate painkillers.


• Tere has been a 300% increase in pain prescription overdose deaths since 1999.


• Tere were 14,800 deaths atributed to opiates, more than cocaine and heroin combined.


• Tere were more that 475,000 emergency room visits related to opiate overdoses in 2009—doubling the count taken just six years earlier. A study released by the American


College Of Environmental and Occupational Medicine states that the use of opiate medicines increases “catastrophic claims” by four times the usual rate.6 • 2.6 billion: Te number of drugs ordered or provided by physician’s offices in the US.7


• 48.7%: Number of individuals using at least one prescription drug in the past 30 days.8


• 21.8%: Number of individuals using 3 or more prescription drugs in the past 30 days.9


• 1 in 10 Americans suffer from chronic pain (25 million Americans per day).10


• 55% to 85% of injured workers receive narcotics for chronic pain relief.11


• $560–$635 billion: Cost of pain in missed work days and medical costs.12 So how do you address this problem


in your workplace? What adjustments should you make to your drug testing program? You may be thinking that you should expand the substances you are now testing for to include more prescription


44 datia focus


drugs. And you may think that you should definitely require your employees to report medications that they are taking. Both of these options have risks. Te


ADA and state human rights laws might limit your “expanded” drug testing and reporting program. How? Why? Te “how” is easier to explain than the “why.” First, let’s take a quick look at some


ADA basics. A complete explanation of this subject is far beyond the scope of this article. But, in general, the ADA prohibits discrimination against “a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”13 In narrowing the focus to workplace


drug and alcohol testing programs, several points must be made. Title I of Te Americans with Disabilities Act14


as


amended in 2008 provides definitions related to the workplace, such as: To whom does this law apply? Employer.—


a. In general.—Te term “employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. What is a disability?


a. a physical or mental impairment that substantially limits one or more major life activities of such individual;


b. a record of such an impairment; or c. being regarded as having such an impairment15 How does the ADA deal with illegal drug use?


spring 2017


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