Beyond DOT Testing Te DOT drug testing panel change affects not only the 6.3 million DOT drug tests that are projected to occur this year on covered employees and candidates, but also how employers address prescription drug use in the workplace beyond DOT positions. Twenty states and Puerto Rico all have laws that reference the DOT, HHS, or SAMHSA drug testing panels in their laws, and tens of thousands of employers look to the DOT panel and procedures as a guideline in establishing their non-DOT drug testing policies. Employers not covered by DOT drug
• Obtain a statement from the employee’s prescribing physician that the medications of concern have been discontinued, the employee is no longer medically authorized to use them, the prescribing physician has changed the prescription to a medication that does not adversely impact safety, or, in the physician’s medical judgment, the employee can safely perform safety-sensitive duties while taking the medication as prescribed.
• Have the employee evaluated by an occupational medicine physician, familiar with the employee’s job duties, to determine if the employee can safely perform his/her safety-sensitive duties.
If an employee has a DOT medical
qualification requirement (e.g., commercial driver DOT physical), the employer may alternately require the employee to submit to another medical qualification examination by a Federal Motor Carrier Safety Administration-certified medical examiner to determine if the driver remains medically qualified. Now, more than ever, clearly defined
policies and procedures are critical for employers. Te policy decision must consider DOT fitness for duty as well as the possible accommodations that an employer can make in these instances. But in a time when prescription drug abuse impacts millions of Americans from all socioeconomic, political, age, gender, and ethnicity groups, DOT employers are not the only ones who have to create strategies and procedures in the workplace.
22 datia focus
testing regulations and DOT employers with non-DOT-covered employees need drug testing policies that address the use of legally prescribed drugs that may affect an employee’s ability to safely perform job duties. Most drug testing policies prohibit
the use, sale, and possession of illegal drugs. Many also prohibit the use of prescription drugs without a valid prescription. Employers can and should test employees for illegal prescription drug use and illicit drug abuse. Further, employers may test job applicants pre- employment and continue to monitor for abuse in the workplace. Te Americans with Disabilities Act (ADA) specifically states that “tests for illegal drug use are not medical examinations and are not evidence of discrimination against recovering drug abusers when used to ensure the individual has not resumed the illegal drug use.” Te ADA considers the use of a prescription drug not prescribed to an individual as illegal drug use and, as such, employees can be disciplined for violating company policy against illegal drug use. However, policies regularly need to
be reviewed and updated to address an employee’s use of legally prescribed and over-the-counter drugs that may affect their ability to perform his/her job duties or potentially expose other employees or the public to danger. An example of suggested language is:
Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician’s
prescription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees, or the public, it is the employee’s responsibility to use appropriate personnel procedures (e.g., call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices.
Tere are several federal regulations
and state laws prohibiting employers from inquiring whether an employee is taking prescription drugs. Te Rehabilitation Act, the ADA, and many state disability laws prohibit asking disability-related questions. However, such inquires can legally be made if the questions are both job-related and consistent with business necessity.
What Should an Employer Do If an Employee is Taking Medications That May Pose a Direct Threat? Te Equal Employment Opportunity Commission issued Enforcement Guidance: Disability-related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), advising that generally,
“a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job- related and consistent with business necessity. In addition, periodic medical
spring 2018
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