The opioid epidemic is well known today and creating a big problem for businesses. So, it is timely to address how we should deal with prescription drugs, in particular pain killers, when conducting FFD tests. Since individuals who use illegal drugs are not protected by the ADA, employers may inquire about and engage in testing for illegal drugs prior to a job offer. However, how should employers address prescription drugs when hiring and accessing for return to work cases following injuries or illness?
In general, employers should not ask their employees to reveal any prescription medications that they may be taking unless it is job-related and consistent with business necessity. Employers can ask employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.
In cases when the employer considers inquiries of an employee about prescribed medications necessary, the employer must be able to demonstrate that there is justifiable concern about an employee’s inability or impaired ability related to perform essential functions that could result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. An oil service company can require crane operators to report when they are taking any medications that may impair their ability to move equipment and/or personnel. However, none of these entities could require employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.
EEOC Enforcement Guidance
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA) explains when it is permissible for employers to make disability-related inquiries or require medical examinations of employees and when prescription medication information may be requested and affect the examination. The EEOC Enforcement Guidance presents EEOC’s guidance on the circumstances under which it is “job-related and consistent with business necessity”, as required by the ADA.
In the case, Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 784 (10th Cir. 1997), the employer implemented a drug and alcohol policy that included many permissible inquiries but also asked employees to inform the employer of every drug they were taking, including legal prescription drugs. This action violated the ADA by failing to demonstrate that the employer’s inquiry was job-related and consistent with business necessity.
When conducting a fitness for duty (FFD) evaluation, the WorkSaver FFD evaluator may and should inquire about any medications taken prior to exposing a test recipient to any type of significant physical exertion required for the FFD examination. This information is derived for business necessity to ensure that the medication, in particular pain medication, will not hinder the person’s ability to perform or mask pain (and therefore mask injury) experienced during physically stressful testing. Any information regarding medications obtained by the WorkSaver FFD evaluator will be maintained on record but should not be provided to the employer unless it meets the requirements as previously described in which there is business necessity for the employer to know.
In cases in which a test recipient reveals that he/she is taking pain medications, the WorkSaver FFD evaluator will refer the test recipient to a medical physician for assessment and medical release to return to take the FFD exam. If a medical release is given the test recipient person will be asked to not take the pain medication at least 24 hours prior to the FFD exam. The FFD testing will then be conducted if the test recipient is pain-free without pain medications. If, however, the test recipient has a chronic painful condition that is not expected to be resolved within a 6-month period, the test recipient may be considered for the FFD if, and only if, the medical condition is considered not to be serious and a medical examination with a signed release by a physician indicates it is safe to administer the FFD examination (i.e., the functional tests due not pose a direct threat of harm to the test recipient). In such a special case, the FFD test may be conducted while the test recipient is taking pain medication only at the FFD evaluator’s discretion (based on his/her assessment of risk at the time of the FFD Test). If the FFD is conducted, the pain rating will be taken and as per standard protocol, any increase in pain during a FFD test will result in termination of that specific test. By this method, the employer can know what limitations exist related to specific activities (e.g., lifting above 20 lbs to shoulder level) that increase pain above the baseline chronic level.
Whether the test recipient taking pain medication(s) passes or fails the FFD, due to the chronic pain condition and requirement for pain medications, the employer will be made aware of the pain medication if pain medication can affect abilities to perform physical tasks that are job-related and consistent with business necessity. In such a case, the employer will then conduct an interactive accommodation review to determine if reasonable accommodations are available to place the person on the job safely without direct threat of harm. Multiple resources can be relied upon by the employer to determine whether or not reasonable accommodations to work may be offered.
It should be clarified than an employer is not required to hire a person who has a health condition that poses a direct threat to self or others. A direct threat is a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation”. 29 C.F.R. §1630.2(r)(1998). Direct threat determinations must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. If an employee presents no direct threat while taking prescribed (not illegal) medication, and allowing the employee to take the medication would pose no undue burden on the employer, the EEOC guidance recommends the employer would be obligated to allow the employee to work under the influence of the medication.
In summary, the employer has the right to determine the fitness for duty of an employee while not taking pain medications in order to determine the true physical abilities to work without masking pain. This article addressed WorkSaver’s protocol for test recipients with chronic pain conditions requiring pain medication to function and who are protected by ADA. Inability to work without pain medication due to a medical condition will trigger protection under the ADA and require an interactive accommodation review.
For more information, contact Dr. Richard Bunch or Mr. Trevor Bardarson at WorkSaver Employee Testing Systems, LLC: (800) 414-2174
WorkSaver Employee Testing Systems 478 Corporate Dr. Houma, LA 70360