As concern grows over prescription drug use—and the potential for its abuse—employers must find a balance between maintaining a safe workplace and complying with regulations that protect employee privacy.

There is no doubt that prescription drug abuse, specifically abuse of opioids used for pain control, is a public health problem. A 2016 study by the Workers Compensation Research Institute showed that 65 to 85 percent of injured employees from 25 states were given opioids (narcotics) by their medical providers.

Appropriate pain relief allows an employee to return after surgery or injury, reducing time away from work. Employees who rely on short-term medical management of pain are able to remain productive. However, opioids can produce negative side effects, such as drowsiness, nausea, and confusion. The National Safety Council (NSC) states “employees using opioids should not be doing safety-sensitive work because of the impairment associated with opioid painkillers.” Yet a NSC poll found that 427 of 1014 adults were prescribed an opioid within the past three years and had some risk-related behaviour, with 39 percent of the users driving to work and 14 percent operating heavy machinery. (Learn more in How Prescription Opioids Affect The Workplace).

Opioids are a class of drugs that originally came from the opium poppy plant, such as morphine and codeine. Semi-synthetic opioids are made in a laboratory using natural opiates. Examples are oxycodone (OxyContin^®) and hydrocodone (Vicodin^®). Scientists have also created completelysynthetic opioids, including fentanyl and methadone. No matter their origin, all opioids have a high potential for abuse and addiction because of the feelings of euphoria they produce besides relieving pain. People abuse or become addicted to the pleasant feelings, unable to stop taking the drugs.

Employers may wish to directly address misuse or abuse of prescription drugs in the workplace, but are unable to implement a universal policy that requires employees to report all their medications. The Americans with Disabilities Act (ADA) requires that any inquiries regarding prescription medications be job-related and consistent with business necessity. (Learn more in What Employers Need To Know About Prescriptions In The Workplace).

What rights does an employer have to determine if any employees present a safety risk or financial risk to the company?

• By taking a proactive stance and developing strong, consistently-enforced workplace drug and alcohol policies, employers can establish a strong legal foundation that will reduce company liability in the event of litigation. The NSC offers excellent guidance for employers.
• In situations where jobs have public safety components, it can be acceptable to require employees to disclose medications that could possibly affect the ability to safely perform basic job duties. However, the employer must demonstrate that the inability to perform these duties is a direct threat to themselves or others.
• Recent (January 1, 2018) DOT testing regulations that include screening for prescription drugs allow the employer’s Medical Review Officer (MRO) to follow up on any positive result to learn why the substance was detected.
• Drug-free workplace policies can describe how the company will handle a positive result for prescription drugs, including the request for certification from the employee’s medical provider that details the ability to safely perform essential job duties.
• After following legal guidelines, the employer can determine on a case-by-case basis if reasonable accommodation is possible.
• The ADA does not protect employees who are currently using illegal drugs or are abusing legal prescription drugs. (However, federal laws state that employers may not fire, refuse to hire, or refuse to promote an employee or candidate who is in a drug rehabilitation program).

While everyone agrees that the workplace should be as safe and risk-free as possible, employees have the right to medical privacy. Employers should be aware of some specific regulations that protect employees.

Specific regulations that protect employees

• The Health Insurance Portability and Accountability Act (HIPAA) prohibits unauthorized sharing of an individual’s medical information. It also restricts the amount of information that can be shared to only what’s necessary. Title 1 of the ADA 29 CFR 1630.14 states that any medical history or information must be documented on separate confidential forms and kept in locked files away from employment records.
• There can be no hiring or job-related discrimination based on a medical condition. Decisions should be based on non-medical qualifications. Employees or applicants may not be asked to share their medical conditions or medications prescribed to treat conditions except when the safety of themselves or others is at risk.
• When a drug screen is positive for a prescription drug, the Medical Review Officer handles the process. The MRO contacts the employee to discuss the reason for the positive result and to follow up with the employee’s healthcare provider. After reviewing all documentation, the MRO makes a recommendation to the employer without providing details that might lead to discrimination.
• Employers cannot require an employee to submit to a drug test simply because the worker seems to be under the influence of drugs or alcohol. Many physical signs of medical conditions, such as diabetic complications or mental illness, can appear similar to prescription drug impairment. The employer could be charged with discrimination or invading medical privacy.

The Equal Employment Opportunity Commission (EEOC) cites two cases that can help employers understand how to navigate in today’s opioid crisis:

1. Bell-Arrow Automotive, Inc. (Arizona) had a policy of automatic rejection of any job applicant who tested positive for a list of drugs, including prescription medications. After offering a position to a qualified candidate, the offer was rescinded when the candidate’s drug screen was positive for a single substance. The candidate was able to prove that the medication was legally prescribed to treat a disability. When the company still refused employment, EEOC was called in for litigation because of the “blanket policy.”
2. When a regional medical center in Georgia fired a physician after finding out he used prescription medication to relieve chronic pain, the EEOC filed a lawsuit on the physician’s behalf. The physician had provided certification from his own healthcare provider, describing the need for the medication and the treatment plan, which also included spinal injections. The medical center continued to pursue termination without any direct communication with the physician, violating ADA guidelines.

Strong workplace policies and consistent enforcement of a drug-free workplace program are essential when dealing with the current prescription medication crisis. Ongoing employee education and supervisor training can protect a company. Employers should always seek legal advice from employment law experts before proceeding with any action.