Very interesting article in today’s NY Times about the struggle to find a balance between an employer’s duty to keep its workplaces safe and an employee’s right to privacy in the context of testing employees for the presence of certain prescription. One company in Tennessee has been sued by three different employees who were fired because the company judged that pain medication they were taking made them a hazard to co-workers.
“The growing reliance of Americans on powerful prescription drugs for pain, anxiety and other maladies suggests that many are reporting to work with potent drugs in their systems, and employers are grappling for ways to address that. What companies consider an effort to maintain a safe work environment is drawing complaints from employees who cite privacy concerns and contend that they should not be fired for taking legal medications, sometimes for injuries sustained on the job.”
One provider of workplace drug tests has found that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year alone. Workers who were tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.
As one employer’s representative put it: “Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”
And don’t think it is just a problem for blue collar workers. In Texas, a prosecutor resigned in 2008 after a scandal for which he blamed impaired judgment because of prescription drugs. And in Missouri, a patient sued alleging that a doctor had torn a hole in his colon during a 2006 colonoscopy while taking the painkiller oxycodone.
The Americans with Disabilities Act plays a central role in the issue. The act generally prohibits asking employees about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons. As one EEOC lawyer put it: “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.”
Of course, the laws on drug testing are complex and vary from state to state. Minnesota has one of the most rigorous; it prevents employers from doing any drug testing without having a written policy and various protections in place. Employers can ask workers in safety-sensitive jobs to self-report any potentially dangerous prescription medications, but they cannot ensure they do so.
Experts recommend that employers develop a thorough and consistent policy that spells out which drugs their workers might be tested for and under what circumstances. In addition, supervisors should be carefully trained to look for signs of impairment — the “reasonable suspicion” necessary under law to warrant testing.