In general, prior to a job offer, a job applicant may be asked about any current illegal use of drugs (including the use of prescription drugs without a lawful prescription) as such inquiries are not prohibited by federal and state discrimination laws. However, in some states, employers cannot ask about the use of marijuana where the drug has been legalized for medicinal and/or recreational use. Therefore, employers should check with their individual state laws regarding permissible pre-employment questions about drugs.
Individuals who use legally prescribed opioid medications, as well as recovering and recovered substance abusers, are considered “disabled” by the ADA and comparable state laws. Therefore, prior to a job offer, an individual may not be asked about lawful drug use because questions about current or prior lawful drug use are likely to elicit information about a disability. In cases when there is a positive drug test result, the evaluator is allowed to ask about lawful drug use or other possible explanations to validate the result.
Of special concern, from a safety perspective, is conducting FFD tests on test recipients while they are taking prescribed opioids or other legal pain killing medications. Such drugs not only signal the presence of pathology but may mask pain sufficiently enough to allow further tissue damage to occur during FFD testing without causing a report of increased pain. Also, the performance of a test recipient taking pain meds during a FFD test may exceed and falsely represent what can be performed at work.
A review of the literature and EEOC cases does not find EEOC guidance arising under the ADA regarding an evaluator’s right to assure that test subjects are free from the effects of prescribed opioids, or other legal pain killing medications, before being required to demonstrate their capacity to perform essential functional demands of the job. This is concerning, particularly, for job safety-sensitive physical tasks such as operating machinery, driving, or carrying heavy objects. This is a pertinent issue not only as it addresses the validity of the FFD test and safety of its administration, but also as it affects the liability incurred by the employer once hired. An employer can be held liable under the General Duty Clause if there is failure to assure that employees in safety sensitive jobs can safely perform their jobs.
In view of the effects of pain medications on physical abilities, the FFD evaluator should have policies and procedures established for FFD test recipients that are reporting symptoms and /or the taking pain medications at the time of the FFD examination. Testing an individual while on pain meds presents a slippery slope for the FFD evaluator. What happens if during the FFD testing process the test recipient suffers an aggravation of a medical condition for which the pain medication is being taken? Subsequent potential litigation could find the evaluator defending his/her judgement for allowing a person on pain meds to undergo a physically stressful functional capacity test. The question, “Please doctor, tell the court what pain means.” has been used in court by attorneys to inducing a response that the physician was well aware that the test recipient had symptomatic pathology while being subjected to the physical stresses of functional testing.
Although there is no clear EEOC guidance on this issue at the time of this writing, there are some specific recommendations that can be made based on current law. First, anyone reporting for a FFD test while symptomatic and/or on pain medications (to include anti-inflammatory medications) should trigger a thorough investigation by the evaluator as to the nature of the symptoms and /or the basis for the medication. The professional judgement as to whether or not to render a FFD test based on safety is entirely up to the evaluating physician. Safety is tantamount. If the painful condition is considered transitory, resolving in less than 6 months, the test recipient is not protected by ADA. In such a case, the FFD evaluator would be justified to refuse to conduct the FFD until the person’s medical condition in question has resolved and he/she is off pain medication.
The physician’s position on not conducting a FFD test when a test recipient is reporting pain and/or taking a pain medication is further reinforced by statements rendered by OSHA and the National Safety Council. OSHA has cautioned that employers should consider that pain is nature’s way of warning that the body is being harmed if a physical task is continued. In fact, it can be considered a violation of the General Duty Clause of the OSH Act if an employer requires job candidates to perform challenging physical tasks while under the influence of pain killers. In November of 2017, the National Safety Council warned employers: “Opioid prescription medications are both a health and a safety issue in your workplace. These medications are powerful, highly addictive drugs that have the potential to cause impairment, increase the risk of workplace incidents, errors and injury even when taken as prescribed.”
In cases in which the FFD evaluator finds that the test recipient’s painful condition is chronic, expected to last longer than 6 months in duration, the test recipient has ADA protection. The evaluator, in such cases, should complete a detailed medical examination and determine how to proceed based on the severity, irritability, and nature of the condition. These findings should be compared to the exertional demands of the FFD test for determination of whether or not there is significant risk to undergo the FFD. If the physician’s professional medical opinion indicates the FFD would be too risky to proceed, then the medical information forming the basis for the opinion is documented and the employer should be notified to conduct an interactive accommodation review.
For additional information, contact Dr. Richard Bunch or Trevor Bardarson, PT, OCS, CBES
WorkSaver Employee Testing Systems