Last updated: September 14, 2020
USA Mobile Drug Testing Compliance specialists report a common question asked by employers “Can I ask the MRO or the employee about the prescription drugs the worker may be taking”. The employer can ask about fitness for duty and require a physician evaluation to verify fitness for duty. Employers often require employees to notify their supervisors if under a doctor’s care or if taking any medication that might affect their ability to safely perform their job duties. This is what fitness for duty is all about.
Employers should not ask about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons. When this occurs, require a reasonable suspicion drug test and have it reviewed by a Medical Review Officer (MRO) and if appropriate requires a fit for duty report from the company or employee physician.
There is an exception is for police officers, firefighters and others in public safety jobs. They can be required to self-report the use of prescription medication if their inability or impaired ability to perform their job functions would result in a direct threat to public safety.
Testing for legal drugs is OK with the EEOC if it’s job-related and justified by business necessity, such as for safety reasons. If an employee tests positive for a prescription drug, you can’t ask them why they’re taking it. And the only situation in which you can ask an employee to stop taking a prescribed medication is when it affects the worker’s ability to do his/her job.
The use of painkillers; such as opioids continue to rise and this is an issue for employers to be concerned with. It is extremely important to be careful about the approach taken. Companies are testing employees for the legal substances for safety reasons. But, as this case shows, there’s a right way and a wrong way to do that.
Dura Automotive Systems tested all of its Lawrenceburg, TN, plant employees for seven legal medications.
The Equal employment Opportunity Commission (EEOC) filed a lawsuit under the Americans with Disabilities Act against the company. The EEOC alleged that Dura:
- required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking the meds
- made it a condition of employment that the employees stop taking their prescribed meds without any evidence the drugs were affecting the workers’ job performance
- suspended employees until they stopped taking their prescribed meds
- fired those who were unable to perform their job duties without taking the meds, and
- disclosed the identities of those who tested positive to its entire work force.
Now, Dura has entered a $750,000 settlement with the EEOC under the Americans with Disabilities Act.
Dura added certain legal drugs, including painkillers such as hydrocodone, to its drug testing program because of concerns that employees taking the meds posed safety hazards.
The EEOC said an employer must have a reasonable belief an employee is unable to do a job or poses a threat to terminate someone using a prescription drug.
Why the concern?
Why are companies even wandering into this potential legal land mine?
A new Workers Compensation Research Institute (WCRI) study shows 1 in 12 injured workers who started using opioids are still using them 3 to 6 months later.
The report, Longer-Term Use of Opioids, says few doctors are following recommended treatment guidelines to prevent extended use. For example:
- Drug testing was used less frequently than recommended by medical treatment guidelines. An average of only 24% received drug testing.
- Use of psychological evaluation and treatment services was also low.
So, given the WCRI study and Dura’s settlement with the EEOC, what are companies to do?
USA Mobile Drug Testing Compliance Specialists urge companies to have a comprehensive written drug free workplace policy reviewed by the company attorney. Supervisors must be trained to look for signs of drug abuse. Company policies should requires a disclosure of medications that might affect the employees ability to perform their job safely and then a follow up physician fit for duty report.
Many doctors say that most people can tolerate and function well on pain medication taken under their supervision. It taken appropriately, opiate painkillers can often help workers do their jobs better. Testing for legal drugs is OK, if job-related and justified by business necessity, such as for safety reasons – always follow the verified test result and guidance from the Medical Review Officer (MRO).