One of the biggest challenges that today’s employers face is maintaining safe workplace laws as medical drug use continues to increase. In fact, 66% of all Americans are actively taking some type of prescription drug – which amounts to a staggering 131 million people. Even more concerning, however, is the rate of prescription drug abuse: 16.1 million individuals have admitted to misusing psychotherapeutic drugs and 9.3 million Americans have admitted to misusing prescription painkillers. Plus, popular attitudes toward psychoactive drugs like marijuana have changed in recent years and recreational cannabis has been legalized in nearly half of the United States. Even when prescription drugs are not being abused, they can still have serious side effects that are important to consider when it comes to safety in the workplace. This is especially true for safety-sensitive industries such as construction, transportation, manufacturing, and laboratory work.
When looking to establish a company policy related to prescription drug use, companies and workplaces need to consider both their own safety needs and the legal (state and federal) restrictions in place. The U.S. Department of Justice (DOJ), the Americans with Disabilities Act (ADA), and the Equal Employment Opportunity Commission all influence the matter.
It is important to note that the DOJ has stated that drug addiction is considered a disability under the ADA– but only if the individual is not currently using illegal drugs or has not used them recently enough to reasonably merit concern that it is an ongoing problem. With that in mind, it is important to have a recording system in place to take note of any behaviors by employees that seem questionable or indicate a self-imposed impairment to perform work safely. It is also crucial to record every detail if a mishap occurs, not just whether the worker was suspected of drug use at the time of the incident.
Employers are allowed to have a drug policy and conduct drug testing for opioids, but it becomes a sticky issue if an employee is taking legally prescribed opioids. If an employee tests positive due to legally prescribed opioids, they cannot be fired or denied employment based on their drug use. There is plausible reason to voice concerns if the employee cannot do their job safely or effectively because of said drug use (such as if the Department of Transportation regulations around drug use disqualify employment), but again, employers are expected to act with discretion and record every action or communication surrounding the issue.
U.S. Department of Justice
The DOJ Civil Rights Division has recently approved changes to protect against employment discrimination for individuals with opioid use disorder. This new guidance does not give employers any additional responsibilities, but it does clarify the way that the current administration is likely to look at interpreting and enforcing ADA protections. This settlement aims to address antidiscrimination policies for people in recovery, citing the prevalence of the U.S. opioid crisis. Under DOJ guidance, employers are not prohibited from adopting reasonable drug-free workplace policies, but there are limitations to these policies due to ADA specifications.
When creating a company drug policy, it is crucial to remember that individuals taking legally prescribed medication (such as methadone, buprenorphine, or naltrexone) for the treatment of opioid use disorder are protected by the ADA. With that in mind, blanket policies banning these substances violate ADA standards. ADA protections also extend to individuals who are participating in drug treatment or rehabilitation programs. Employers cannot discriminate against employees based on their participation in these programs. Current illegal drug use, however, remains unprotected.
The Equal Employment Opportunity Commission (EEOC) states that employees may be entitled to take leave under the Family and Medical Leave Act (FMLA) for drug treatment and/or recovery. The EEOC’s most recent definition of “opioids” includes prescription drugs such as codeine, morphine, oxycodone, and even illegal drugs (e.g., heroin). The EEOC also notes that employees who are currently addicted to opioids are protected under the ADA. Opioid addiction is a diagnosable medical condition and can be an ADA-covered disability that would require an employer to consider reasonable accommodations. These accommodations could look like time away from work to attend therapy or group support sessions, or an extended leave/sabbatical for recovery. All of this should be covered and included in a basic company drug policy.
When a company is formulating a drug policy, the necessity (if any) for drug testing both future applicants and current employees, should be taken into consideration. State laws typically allow employers to test job applicants for drugs. There are some restrictions– for example, the candidate must have been informed that drug testing is a standard part of the screening process. When testing current employees, there are several more stipulations. Testing must normally be focused on an individual, either because (1) the employer has good reason to believe that the employee being asked to test is using drugs or (2) the normal work operations entail a high risk of injury or damage if the individual doing that job is under the influence. In the case of a work accident occurring, courts have historically supported companies in testing employees who were involved in an accident that could potentially have been caused by drug use or who were recorded as having the appearance of drug impairment at the time of the incident. Again, the timeliness of observations, the legality of the drug in question, and their actual influence on the type of incident are very important.
Creating a basic company drug policy will require awareness of current state and federal laws surrounding drug testing. A company’s drug policy, including the drug testing policy, is a part of an organization’s safety management practices, and should therefore be handled with the same level of attention to detail as any other compliance issue. Especially within safety-sensitive industries, it is crucial to adopt and maintain a drug policy that not only considers the knowledge and standards established by the ADA, DOJ, EEOC, and state legislatures, but also the needs of its workers to prevent accidents and ensure the workplace remains a safe environment.
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