Can Employers Test for Prescription Drugs?

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Prescription drug screening

Many of today’s employers are concerned with the impact of prescription drugs on the workplace. After all, the use and abuse of prescription medications, like illicit drugs, can sometimes have negative effects on the workplace: increasing the potential for on-the-job accidents, impacting job performance, and providing a stronger impetus for workplace theft.

In some cases, safety issues can arise even if the medication is being used legally and as directed by a physician.

Employers know that the use and abuse of these medications is a serious issue that deserves their attention. In a recent 2011 survey by the National Institute on Drug Abuse (NIDA), nearly 20 percent of Americans older than age 12 reported using prescription drugs in a non-medical manner at some point in their lifetime.

NIDA also reports that prescription drugs are, after marijuana and alcohol, the most commonly abused substance in the U.S. Recently, the Centers for Disease Control and Prevention have classified this type of abuse as an epidemic and indicate that it is the fastest growing drug problem in the U.S., with one death every 19 minutes.

Prescription Drug Use in the Workplace
Furthermore, there is some evidence that prescription drug use and abuse is a growing problem in the workplace. According to Quest Diagnostics, a leading drug testing laboratory, there has been a marked spike in the incidence of employees testing positive for prescription opiates—more than 40 percent from 2005 to 2009.

Yet unlike illicit drugs, for which most U.S. employers can test easily and legally, prescription medications present a number of challenges to organizations. For one, the mere presence of these substances in a drug test does not constitute an offense, unlike with illegal drugs.

Prescription Drug Protections
Additionally, many employees using these medications are protected by the federal Americans with Disabilities Act (ADA), which limits an organization’s ability to question its employees’ use of such drugs unless an employee’s behavior is compromising workplace safety or is otherwise indicative of a reduced ability to perform his or her job. Furthermore, workers can claim the privacy of their health information and not share details of medication use with their employers.

One recent situation can possibly help provide some guidance to employers as they navigate this issue. In 2007, an automotive parts manufacturer was concerned about what it believed to be a higher than normal rate of workplace accidents at one of its factories.

Suspecting that the underlying cause of these accidents was drug use by employees, the company banned the use of several prescription medications and required all its workers in the facility to take a drug test that comprised a panel of 12 substances, five of them illegal and seven of which were commonly abused prescription medications.

The company then took adverse action, including suspension and termination, against several employees who tested positive for these substances, most of whom had legitimate prescriptions for the medications.

The U.S. Equal Employment Opportunity Commission (EEOC) subsequently initiated a lawsuit against the company, on the basis that the drug testing violated the employees’ rights under the ADA.

The case resulted in a settlement of $750,000 in favor of the EEOC, which contended that the employer’s actions constituted unlawful medical inquiries and required medical examinations that were not job-related or consistent with business needs. Indeed, the EEOC recommends a very specific set of conditions under which employers can require disclosure by workers of prescription drug use, with impact to public safety being the primary concern.

Potential Exceptions
In some instances, like with employees in safety-sensitive positions or in a post-accident situation, employers may have some latitude to inquire into, or even test for, prescription medications used by the employee.

Indeed, organizations regulated by the FMCSA could potentially be allowed to require their drivers to proactively report the use of all prescription medications currently being used pursuant to 49 CFR 382.213, given that many commonly prescribed medications can have powerful effects and could therefore impact driving ability if they are taken during the performance of duties.

Employers, however, should be very judicious and careful in these situations and engage their employment counsel to help guide them as to when this type of inquiry or testing would be appropriate.

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