Scenario: One of your employees is taking a legally prescribed medication and works with machinery that has the potential to maim or kill. The label on the medication warns against driving or operating machinery while taking the drug. What do you do?
For more and more companies, the answer is, fire the employee if he/she can’t stay off the medication.
But is a blanket policy fair to employees? What if, under a doctor’s supervision, the medication doesn’t impair the worker?
The issue is in the courts.
Dura added certain legal drugs to its employee testing because of concerns that employees taking these medications posed safety hazards.
About 500 Dura employees submitted urine samples, and 44 tested positive. They were put on a 30-day leave of absence and had to pass a second test to return to their jobs.
Experts are split on what to do about this issue.
“Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue,” Mark de Bernardo, executive director of the Institute for a Drug-Free Workplace told The New York Times.
On the other hand, Dr. Seddon Savage, a pain specialist at Dartmouth College and president of the American Pain Society, said, “Well-prescribed opioids at a stable dose that are well supervised in most healthy people won’t cause sedation or other cognitive problems.”
Lawyers for the Equal Employment Opportunity Commission, which filed one of the lawsuits against Dura, say 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.
How widespread is this problem? Consider two things:
- In the situation involving Dura, 8.8% of employees tested positive.
- Drug-testing company Quest Diagnostics recently reported that use of prescription opiates jumped 18% from 2008 to 2009 and 40% from 2005 to 2009.
Given the controversial nature of this subject, you might wonder why some companies are wandering into this potential minefield.
One reason: Many states provide incentives — such as discounts on workers’ compensation premiums — for employers to drug test their employees.
Dura’s drug tests were part of its participation in Tennessee’s Drug-Free Workplace Program, which provided workers’ comp incentives.
Sue Bates, one of the employees who was fired and is suing Dura, said she understands the company’s safety concerns. However, she believed the company should have worked with employees who take prescription drugs rather than fire them.
What can companies do? According to Quest, they should develop thorough and consistent policies that spell out which drugs their workers might be tested for and under what circumstances.
But until some of these lawsuits are heard, it won’t be a surprise if companies take a wait-and-see attitude about testing for legal drugs.