Prescription for a Hazardous Workplace

This is the toughest drug problem facing safety professionals today.

No matter how many employees you have, prescription drug abuse is most likely a serious safety hazard in your workplace. Please understand that we are talking about medications obtained under the direction of a treating physician (employee has a legitimate prescription) and not illegal drugs or illegally obtained drugs. Many employers and safety professionals incorrectly believe the problem is addressed through current employee screening and traditional drug testing -- but traditional drug testing is not enough.

To address prescription drug abuse in the workplace, employers must enter the vortex created where federal and state law collide with an employer's interest in promoting a safe workplace. Essentially, it's a turbulent and somewhat unpredictable place where individual interests are balanced against safety. Whether you choose to address this problem or continue to avoid this complex and troublesome issue, every safety professional should understand why this is the toughest drug problem facing safety professionals.

Prescription drug abuse is the nation's fastest-growing drug problem and is now classified as an epidemic. More people die each year from prescription drugs than illegal drugs or automobile accidents. According to a recent Centers for Disease Control and Prevention (CDC) report, for every woman who dies of a prescription painkiller overdose, 30 go to the emergency department for painkiller misuse or abuse (although men are more likely to die of prescription painkiller overdoses). To put it in perspective, every three minutes, a woman goes to the emergency department for prescription painkiller misuse or abuse.

Almost 70 percent of Americans take at least one prescription medication, and more than half take at least two, according to a study by researchers at the Mayo Clinic. The most common prescriptions are for antibiotics, antidepressants, and opioid painkillers. The study found 13 percent of the population has a prescription for opioids. Unfortunately, society has developed a "pill for every ill" mentality. Most safety professionals would need truly wishful thinking to believe that prescription drug issues don't exist in their workplaces.

Traditional Testing Misses This Problem
The association between drugs and safety was established long ago, but a traditional drug testing policy fails to adequately address the problem of prescription drugs. Traditional drug testing policies fail to test for some of the most commonly abused prescription drugs. This failure is apparent in the Department of Transportation's (DOT) drug testing program used by many private employers as a model. For those unfamiliar with it, DOT mandates that truck drivers, airplane pilots, railroad engineers, and others (all safety-sensitive functions) adhere to the strict Procedures for Transportation Workplace Drug and Alcohol Testing Program (Title 49 CFR Part 40).

Testing under DOT guidelines is limited to marijuana, amphetamines, phencyclidine, cocaine, and opiates. Currently, however, opiate testing consists of only codeine, morphine, and 6-acetylmorphine (heroin specific metabolite). Prescription opioid painkillers (such as hydrocodone, hydromorphone, and oxycodone) and antidepressants (i.e., benzodiazepines) cannot be tested for under DOT guidelines. Safety professionals need to make a realistic assessment of the traditional drug test policy to see whether they are testing for the prescription drugs that are being commonly abused.

Even where a traditional drug testing policy is testing for prescription drugs, employers and safety professional in non-regulated industries will not receive proper information unless their Medical Review Officer (MRO) is specifically directed. Where an employee provides prescription information for a positive drug test under a traditional drug testing policy, many MROs report the results as negative, without any indication to the employer that a prescription exists. Traditional drug testing policies were built to detect and deter illegal drug use, but prescription drug abuse is the threat to workplace safety today.

Guidance for Addressing Prescription Drug Use
So it's not real difficult to arrive at the conclusions that prescription drugs are a threat to workplace safety, and traditional drug testing doesn't really help. The toughest part is deciding how to address the problem. This is where you enter the vortex mentioned above. Unfortunately, most employers do not have the fortitude and risk tolerance to enter the storm, even where they know it's a major safety concern.

First, consult your human resources professional and/or legal counsel before you do anything. This is where civil rights, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family Medical Leave Act (FMLA), and many state protections come into play. Federal and state laws significantly limit your moves in addressing prescription drug use in the workplace. Going deep into this confused tangle of complexities is beyond the scope of this article, but safety professionals should know the following:

  • Asking an employee or prospective employee about legal drug use and/or prescription medications is prohibited unless special conditions are met.
  • Testing an employee or prospective employee for legal drug use and/or prescription medications is likely prohibited unless special conditions are met.
  • Employers are allowed to ascertain if an employee is able to perform essential functions of a job.
  • If prescription medications make a prospective employee unfit for duty, employers may make inquiries only after a conditional offer of employment is made. Fitness for duty inquiries cannot begin before an offer of employment is made (new hires).
  • Employers must apply prescription medication use policy uniformly to all employees working in that job category.
  • Employee and prospective employee medical information must be kept strictly confidential.
  • Employers with a reasonable belief based on objective evidence that an existing employee's ability to perform the essential job function safely is impaired by prescription medication or that such employee poses a direct threat due to the prescription medication may make inquiries/tests.
  • Employers may only ask about and/or test for prescription medications when such inquiry is job related and consistent with business necessity.

Even though the problem is apparent and traditional drug testing is not the fix, employers do have some choices to address the problem. This area of the law is unsettled and treacherous, with no easy formula in sight to solve the delicate balance of individual protections with workplace safety.

There is one area where employers might be more comfortable in taking a stand on prescription medications, and that's where "safety-sensitive" job functions are being performed. A safety-sensitive position is one in which the duties involve such a great risk of injury to others that even a momentary lapse of attention can have disastrous consequences. Many federal courts have used safety-sensitive concerns to overcome individual privacy protection under the 4th Amendment to allow things such as random drug testing. Although the 4th Amendment protections do not apply in the private employment context, a similar balancing of interests might be likely to occur in considering workplace safety in light of individual protections provided under existing law.

In several safety-sensitive industries, in addition to the DOT panel, employers are also testing for prescription medications such as barbiturates (pentobarbital, butabarbital), benzodiazepines (alprazolam, diazepam), synthetic opiates (hydrocodone, hydromorphone, and oxycodone), propoxyphene (although this drug is no longer manufactured), and methadone. A relatively new trend is also the addition of buprenorphine (Suboxone).

Some employers require safety-sensitive employees to consult with their own physicians and to report any and all work restrictions as a result of prescription medication use. Some more aggressive employers assert that an employee's use of a prescription medication that may impair workplace safety should trigger an individualized assessment of how that individual's job duties and risks, medical condition, and treatment plan intersect to determine whether that individual should be barred from working in a safety-sensitive role while using that prescription medication. Although the forgoing represents extreme prudence, all safety professionals must recognize that addressing prescription medications in safety-sensitive functions is absolutely critical to workplace safety.

The prescription for a hazardous workplace is where a safety professional fails to recognize that prescription drug use is a serious safety concern. Traditional drug testing policies do not protect against this epidemic, and a great deal of fortitude is required, along with solid counsel, to address the problem. In spite of the complex and troublesome challenges to addressing this issue, safety professionals should take action where safety-sensitive functions make this issue the toughest drug problem.

This article originally appeared in the September 2013 issue of Occupational Health & Safety.

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