Prescription Drugs and Safety Warnings: The Impact for Providers and Employers
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.
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. Reprinted in partnership with the Drug & Alcohol Testing Industry Association/ DATIA focus, an industry association representing the full aspect of drug free and safe workplaces. datia.org
On Jan. 1, 2018, the Department of Transportation's (DOT) regulatory updates went into effect. The updates covered many aspects of DOT mandated testing, but most significant was the addition of four semi-synthetic opioids, hydrocodone, hydromorphone, oxycodone, and oxymorphone. Along with the panel change, DOT clarified that the age of a prescription cannot impact the reversal of a laboratory positive drug test. The updates to 49 CFR Part 40 (Part 40) require that the Medical Review Officer (MRO) must determine whether the "use of the substance can form the basis of a legitimate medical explanation only if it is used consistently with its proper and intended medical purpose."1 Part 40 further requires the MRO to report medical information gathered in the verification process to employers:
"(a) As the MRO, you must, except as provided in paragraph (c) of this section, report drug test results and medical information you learned as part of the verification process to third parties without the employee’s consent if you determine, in your reasonable medical judgment, that:
(1) The information is likely to result in the employee being determined to be medically unqualified under an applicable DOT agency regulation; or
(2) The information indicates that continued performance by the employee of his or her safety-sensitive function is likely to pose a significant safety risk.
(b) The third parties to whom you are authorized to provide information by this section include the employer, a physician or other health care provider responsible for determining the medical qualifications of the employee under an applicable DOT agency safety regulation, a SAP evaluating the employee as part of the return to duty process (see §40.293(g)), a DOT agency, or the National Transportation Safety Board in the course of an accident investigation."2
If the prescribing physician states that the medication cannot be discontinued or changed to a medication that does not pose significant risk to the performance of safety-sensitive duties, the employee should be removed from safety-sensitive duties and an accommodation provided for non-safety-sensitive duty, if available.
However, the employer is not required to do anything based on Part 40 rule language. In fact, the phrase "safety concern" does not appear in Part 40 or any of the DOT agency regulations.
As a practical matter, an employer should "resolve" a safety concern reported by the MRO as a measure to limit liability for accidents/incidents that may be related to an employee's unsafe performance of safety-sensitive duties. The two recommended ways to resolve or address MRO reports of a safety concern are:
- 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 judgement, 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 whether 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 qualfification examination by a Federal Motor Carrier Safety Administration (FMCSA) certified medical examiner to determine whether the driver remains medically qualified.
Now, more than ever, clearly defined policies and procedures are critical for employers. The 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 socio-economic, political, age, gender, and ethnicity groups, DOT employers are not the only ones who have to create strategies and procedures in the workplace.
Beyond DOT Testing
The 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 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. The 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." The 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 his or her 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.
There are several federal regulations and state laws prohibiting employers from inquiring whether an employee is taking prescription drugs. The 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?
The Equal Employment Opportunity Commission issued Enforcement Guidance: Disability-related Inquiries 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 examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity."3
This standard may be met under the following circumstances:
- When an employer knows about a particular employee's medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition;
- If an employer is given reliable information by a credible third party that an employee has a medical condition;
- The employer observes symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.
In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.
An employer's reasonable belief that an employee's ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination. Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions.
Before implementing or revising a drug policy to include limitations on the use of lawfully prescribed medications and over-the-counter drugs, employers should require human resources to work carefully with management to determine which positions, if any, should be covered by a prescription or over-the-counter drug policy. While asking employees who operate heavy equipment whether they take medications that can affect motor skills is arguably job-related and consistent with business necessity, asking a secretary or receptionist is likely prohibited.
Employers must provide reasonable accommodations under the Rehabilitation Act, ADA, and various state disability discrimination laws. Reasonable accommodations must be made on a case-by-case basis. They may include transferring an employee to a vacant position, permitting an employee to utilize paid leave while on a particular medication, and/or revising job duties. Employers should seek input from their own doctors, in addition to the employee’s doctors, in determining whether a reasonable accommodation exists.
Conclusion
Last year, the Equal Employment Opportunity Commission (EEOC) entered into a consent decree settling a lawsuit for disability discrimination it filed on behalf of a job candidate who made application for employment with an Arizona business. The business, Bell Lexus/the Berge Group, withdrew an offer of employment for a salesperson after a pre-employment drug test revealed that the job candidate was taking a prescription drug used to treat a disability that was on the business's list of unacceptable prescription medications. The EEOC contended that the employer violated the ADA, concluding, "Blanket exclusion policies based on drug test results harm applicants and employers. The ADA requires a case-by-case evaluation of applicants with disabilities to make sure employers assess these applicants on their merits." The businesses will pay $45,000 to the victim; provide training to their managers, supervisors, and human resources staff on the ADA; and review their employment discrimination policies.
Given the new DOT regulations and decisions such as the one detailed above, employers should be consulting with occupational health drug testing providers, MROs, and subject-matter experts to make informed decisions about prescription drug testing and what is and is not permissible.
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References
1. 49 CFR Part 40 Section 40.137(e)(3)
2. 49 CFR Part 40 Section 40.327
3. Enforcement Guidance: Disability-related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA)
This article originally appeared in the June 2018 issue of Occupational Health & Safety.