* * * (d) Drug testing (1) In general
For purposes of this subchapter, a test to determine the illegal use of drugs shall not be considered a medical examination. [emphasis added]
But including legally prescribed
drugs in a test panel without first determining on a case-by-case basis that doing so is “job-related and consistent with business necessity” may cost employers dearly. In just one example, in Tennessee, an employer decided to conduct a “twelve-panel” drug test for all employees, which included legally prescribed medications.24
Those who
tested positive were suspended and ordered to stop using their medication or lose their jobs. The EEOC sued the employer on behalf of the employees, resulting in a consent decree costing the employer $750,000.25
2. Reporting Medications: Employers are also responding to the opioid crisis by requiring all employees to report medication they are taking. Like expanding your test panel, this, too, could violate the ADA. The EEOC has interpreted the ADA
and, in a 200 Enforcement Guidance,26 the EEOC posed the following question and answer:
“May an employer ask all employees what prescription medications they are taking?”
Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report
www.datia.org
when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.
Top 7 Tips for Employers Not one employer in this country is immune to the opioid epidemic. Te time is now for employers take a proactive role to be as educated and prepared as possible. Employers should: • Clearly understand the state-specific drug and alcohol screening laws, and court and agency rulings that apply to your company in each state(s) you operate in.
• Evaluate the pros, cons, and ”business necessity” of the screening of prescription drugs for your specific workforce.
• Create and/or update and implement a writen drug-free workplace policy that clearly states the company’s stance on prohibited drugs and alcohol use and the related consequences that will be imposed.
• Design and implement sound processes and procedures that complement the language within the company policy. Tis will remove any guessing or potential mistakes when action needs to be taken in the ”heat of the moment.”
• Educate your employees on the dangers and impacts of drug use.
• Encourage employees to seek help with any drug dependency or addiction through your Employee Assistance Program (EAP) benefits.
• Train your managers and supervisors on the details of your company’s drug-free workplace policy. Help them understand the laws that apply (including the Americans with Disabilities Act [ADA]). Train them on how to recognize the signs of impairment from drug use and clearly define the action steps they should take in these instances. ❚
References 1 2 3 4 5
https://www.cdc.gov/opioids/strategy.html.
https://www.cdc.gov/drugoverdose/epidemic/index.html.
https://www.cdc.gov/drugoverdose/epidemic/index.html.
https://www.cdc.gov/drugoverdose/data/statedeaths.html.
https://www.cdc.gov/drugoverdose/data/statedeaths.html. That site also has an interactive map showing the data for each state.
6 7 8
https://www.ncbi.nlm.nih.gov/books/NBK92510/.
https://www.cdc.gov/drugoverdose/prescribing/guideline.html.
https://www.cdc.gov/media/releases/2014/p0303-prescription- opioids.html.
9
https://www.cdc.gov/mmwr/volumes/65/rr/pdfs/rr6501e1. pdf;
https://www.cdc.gov/drugoverdose/pdf/Guidelines_ Factsheet-a.pdf.
10 11
https://www.cdc.gov/mmwr/volumes/65/rr/pdfs/rr6501e1.pdf.
https://www.businessinsurance.com/article/20190109/NEWS08 /912326038?template=printart.
12
https://www.businessinsurance.com/article/20190109/NEWS08 /912326038?template=printart.
13
https://www.assp.org/news-and-articles/2018/08/28/national- crisis-opioid-abuse-in-the-construction-industry.
14 15 Spine, September 1, 2007;32 (19): 2127-32.
http://newsroom.questdiagnostics.com/2018-09-06-Quest- Diagnostics-Health-Trends-TM-Study-Finds-Drug-Misuse- Rates-Remain-Constant-at-High-Levels-and-Dangerous-Opioid- related-Drug-Combining-Is-Prevalent.
16
https://www.questdiagnostics.com/home/physicians/health- trends/drug-testing/
map_opiate.html.
17 18 19 20
See
https://www.osha.gov/dcsp/alliances/aiha/aiha.html. 82 Fed. Reg. 52229. 82 Fed. Reg. 52231.
Swotinsky and Smith, The Medical Review Officer’s Manual: MROCC’s Guide to Drug Testing, p. 1, OEM Press (1999).
21 22
https://www.cdc.gov/opioids/strategy.html.
Of course, this is not to suggest a company policy couldn’t prohibit over-the-counter medications; they simply are not addressed under the DOT rules.
23
https://www.nsc.org/in-the-newsroom/prescription-drug- misuse-impacts-more-than-70-of-us-workplaces.
24
EEOC v. Dura Automotive Systems, Inc.,
https://www.eeoc.gov/ eeoc/newsroom/release/
9-5-12.cfm.
25
An additional lawsuit was filed against Dura Automotive Systems, Inc., resulting in a jury award of well over $1 million. See Bates v. Dura Automotive Systems, Inc.
26
https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
Jonathan Baktari, MD is the CEO of US Drug Test Centers located in Las Vegas and e7 Health, located in Las Vegas and Chicago. Dr. Baktari is pas- sionate about helping compa-
nies operate to the best of their ability and create a safe workplace. As a triple board certified phy- sician, he uses his vast knowledge of the medical field and his business acumen to assist others in staying compliant in their drug testing programs, and providing top rated care to clients. Jonathon has received numerous awards, and has partici- pated in multiple speaking engagements.
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