By Mark F. Kluger and William H. Healey
After several weeks off from sex and drugs, writing about them anyway, we feel the need to address how employers can deal with the Opioid crisis in the workplace. Two recent federal court cases help shed some light on the issues.
Job applicants in an Alabama power plant must pass a 5 panel drug test. A pipe fitter tested positive for an Opiate and submitted a letter from his doctor confirming that he had a prescription due to lower back pain and stating that he could safely perform the job duties. The employer pressed for more information, learned that the applicant regularly took Morphine and said thanks but no thanks…not in this power plant. The applicant sued under the Americans With Disabilities Act (“ADA”), claiming that the employer did not have the right screen for prescription medications or to seek more specific medical information. In late January, a federal court dismissed those aspects of the case, finding that an employer, without violating the ADA, can test for prescription drugs in order to determine whether a prospective employee can safely perform the job duties and can make additional inquiries to the applicant’s medical professional.
Only a few weeks ago, a federal court in Ohio dug even deeper. In that case, the employer, a label printing company with heavy machinery, has a handbook policy that requires employees to notify management if they are taking prescription or non-prescription medications in order to assess the potential danger posed by an employee being under the influence at work. A production manager, who spent between 10-20% of his day working around the heavy machinery, had also been taking prescription Morphine for a degenerative disc problem which he had not revealed to the employer despite the policy. When the manager asked a co-worker if he could borrow a Vicodin, he did not get high with a little help from his friend because the co-worker ratted him out to management. Whatever happened to bumming a cigarette or having a beer after work?
The employer sent the long-term employee for a drug screen which was, of course, positive for Opioids. Not wanting to terminate him though, the employer referred the employee to counseling and the CEO personally asked the employee to consult with his doctors to see if there were alternatives to controlling his pain. In his deposition, the CEO said, I guess what I was hoping to see is some doctor saying they’ll take full liability to put him on the floor…popping Vicodin without a prescription, and taking Morphine.
And that is the right move. We have found that although many doctors will return employees to work without restrictions, most don’t really know what the employee does, how and where. But when employers push back on doctors, with a job description and a follow up request for the doctor to clear the employee to safely perform the specific essential functions of the job, they are often not as eager to accept responsibility for their original release.
In the Ohio case, the employee refused to consult with his doctor and defiantly told the employer that he had no intention to stop taking Morphine. Needless to say, he was not invited to return to work. He also sued the employer under the ADA. In dismissing the case, the court said that by refusing to cooperate in the interactive process, in which his employer requested that he seek alternatives from his doctor, the employee did not have a basis for a discrimination claim under the ADA.
What’s the lesson here? These cases make clear that employers should not be shy when it comes to using drug testing, not accepting a medical professional’s clearance of an employee to return to work without restrictions when strong medications may have been prescribed, and pressing those medical professionals either for alternatives to the pain killers or to take responsibility in writing for returning an employee to work in what might be an unsafe condition.
As the use of drug testing has become more prevalent, one more mind-blowing fact: there is such a thing as synthetic human urine which can be used to create a negative drug screen–and it is readily available. A number of states, including New Jersey, have already made it illegal to distribute, and the Mississippi legislature is currently considering a bill entitled, Urine Trouble (which at our age has nothing to do with drugs).