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The purpose of this WorkSaver newsletter article is to explain WorkSaver’s current physical agility testing policy related to test recipients using pain killing drugs and to provide guidance to employers on how to handle employees who are taking prescription medications, abusing legally prescribed medications and/or taking illegal drugs.

As the opioid epidemic grows in the United States, WorkSaver has been confronted with an increasing number of job applicants and employees returning to work following injury/illness who claim they require pain medications to perform essential job functions. Of course, the concern in such cases is that by working under the influence of a painkiller, the drug may mask further aggravation of the physical injury and thus, not allow improvement with time or increase the severity of injury. The sensation of pain is a very important protective mechanism that generally allows a person to know which physical activities are causing injury to the body. Dr. Chadwick Prodromos, MD, Orthopaedic and Sport Medicine Fellowship at Harvard Medical School stated:

“Pain signals us that damage or death has occurred to the cells in the affected area. For example, bone cells in a fracture, tendon cells in a tendon rupture, or muscle cells in a torn muscle. It is also our body’s way of telling us not to use the affected area. It is remarkably specific in telling us not to do certain activities that will aggravate the given area but letting us do others that will not aggravate the affected area.”

Obviously, drug masking of the protective feedback mechanism of pain can lead to significant disability that the employee may attribute to his/her job. Severe osteoarthritis of the knee(s) is an example where continuing use of painkillers can mask additional damage to the knee from work activities such as repeated squatting, kneeling and/or stair/ladder climbing. In addition, taking opioids can adversely impact alertness, cause drowsiness, impair decision making, and consequently create a safety risk to not only the person taking the prescribed medication but also to co-workers and /or the public. This is obviously very worrisome when, for example, working around moving machinery, operating cranes, and driving vehicles.

WorkSaver’s Fit-for-Duty Testing Policy Related to Opioids

WorkSaver’s testing policy is that a test recipient must be off of all prescription pain medication or opioids for at least 24 hours prior to undergoing a conditional new hire (post-offer, pre-placement) physical agility exam or a return to work fit-for-duty examination following an injury or illness. In this manner, the test can be conducted without the risk that the drug is masking pain. Consequently, the test will then accurately reveal whether or not the test recipient can or cannot perform the essential functions of the job safely without the pain-killing effect of medication. Knowing which essential job function(s) aggravate pain without the masking effect of a drug also allows the employer to know what accommodations are needed for job placement and whether or not a reasonable accommodation can be offered without causing an undue hardship to the employer. This knowledge offered by the WorkSaver examination is particularly useful and important if the employer permits the employee to work while taking prescribed opioids.

Understanding the Opioid Epidemic Today

So, what does an employer do when one of their employees is taking a legally prescribed opioid (painkiller) and operates moving machinery that has the potential to maim or kill? This exposes the employer not only to the risk of an on-the-job accident but also exposes the employer to legal liability! After all, the label on the medication warns against driving or operating machinery while taking the drug and the employer knowingly allowed the employee to drive or operate machinery regardless. A catch 22 if there was ever one!

The opioid epidemic in getting out of hand and has gained significant national attention. President Trump recently identified opioid addition as a national emergency. In 2010, more than 38,000 people died of drug overdoses, of which 16,651 were tied to prescription opioids alone or in combination with other prescription medications or alcohol. Overdose deaths from prescription opioids now exceed deaths from both heroin and cocaine combined. Drug overdoses, predominantly from opioids, now exceed car crashes as the leading cause of unintentional death. More than twice as many Americans have died from this prescription opioid overdose epidemic than during the Vietnam War. (Source: NSC)

Opioid prescription medications are obviously 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. Prescription painkillers profoundly increase workers’ compensation costs, increase the length of worker disability and increase work time lost. Opioid prescription abuse also significantly increases the use of emergency room services, hospitalizations and other medical costs. Sales of prescription painkillers and the number of fatal poisonings quadrupled from 1999 to 2010. Drug treatment admissions for prescription opioids showed a seven-fold increase between 1998 and 2010.

Overuse of such drugs, experts contend, can clearly impair an employee’s ability to do his or her job, even if a worker is using the prescribed medications in the correct dosage. They can still lead to impairment on the job, and can potentially be harmful. One case in North Carolina last year involved a carpenter who was seriously injured after a fall. Opiates were found after his drug test and the employer tried to deny him workers’ compensation, claiming he was impaired at the time. In this case, the court found in the employee’s favor because there was no evidence of how much of the drug was in his system. If it did indeed show high levels of the narcotic he would likely have been denied benefits.

There are three simple key indicators that should immediately alert an employer that opiates may be getting in the way of a job:

1. When an employee requires extra time to complete simple day-to-day tasks.
2. When job performance declines, results in more mistakes and accident near-misses.
3. When an employee appears apathetic about the quality of his work.

Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford to ignore this issue. On the other hand, employers cannot over-react to employees taking legally prescribed pain medications. 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 (EEOC), which filed one of the lawsuits against an employer, 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.

Today, especially with an increasingly aging workforce, complete medical resolution of certain physical conditions is commonly not obtainable. Instead, people are frequently released to work when they reach maximum medical improvement (MMI). MMI means medical management is no longer required but does not indicate whether or not the person can still perform the essential functions of a job safely. Residual functional capacities after MMI must be accurately compared to the essential functions of the job via a job-specific physical agility or functional capacity evaluation as performed by WorkSaver.

Drug Addiction, ADA, and EEOC
WorkSaver’s attorney, Topper Thompson, reviewed a legal analysis of ADA drug issues previously sent to him in the form of an online seminar by a former ABA OSHA Committee colleague. His study of this issue convinced him that there are several levels of legal considerations that apply to the use of prescribed and non-prescribed pain medications.

The issue of prescription painkillers (specifically opioid pain medication) and the dangers that they pose in the workplace has many layers to it and it can be complicated and confusing. What is clear is that the opioid epidemic is causing a lot of problems in the workplace. Prescription pain medication can be addictive. Here are some key points that must be considered related to opioids at work:

• • Taking prescription pain medication at work can impair an employee and cause the employee to make serious errors which could put other workers in danger as well.
  • Opioids might be relieving the employee’s pain, but they can also be causing harm to the worker as well. There is a significant chance of dependence and delayed recovery from the injury
  • Workers’ compensation claims for prescription painkillers users can be as much as four times higher than for non-prescription painkiller users.
  • When an injured worker receives more than a week of prescription pain medication following an injury, they are twice as likely to sustain another injury, which can lead to increasing disability claims for workers who take prescription opioid pain medication.
  • When a worker gets injured and becomes dependent on pain medication, he/she returns to work while still taking the pain meds which increases the risk of re-injuring themselves and/ or possibly causing injury to other workers.
  • Another serious concern occurs with opioid pain medication dependence or addiction. If addicted to opioids, when a worker runs out of the medication and is unable to refill the prescription, he/she may turn to heroin or other illegal drugs.” (Reference: National Safety Council)

An individual who has a “record of” drug addiction can qualify for protection under the amended ADA. Addiction to legal or prescription drugs can qualify as a disability under the ADA as amended [42 U.S.C. § 12102(2)]. Being addicted in and of itself does not qualify a person for protection by ADA. In order to be protected by ADA, the addiction must substantially limit one or more major life activities. However, if a worker uses a narcotic painkiller that has not been prescribed (such as Oxycodone), the ADA states that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” Interpretive guidance on Title I of the ADA clarifies, “illegal use of drugs refers both to the use of unlawful drugs, such as cocaine, and to the unlawful use of prescription drugs.”

It is opined by WorkSaver’s attorney that an individual who is using prescription narcotic drugs to mask pain, without prescription or perhaps even in excess of a medical prescription, is not a “qualified individual with a disability” unless that person has a record of a physical or mental impairment that substantially limits one or more major life activities.”

Another level of legal inquiry is the situation where an individual with a disabling condition such as severe osteoarthritis requests accommodation to take a painkiller to perform an essential job task such as frequent or constant stair climbing. Is such an accommodation reasonable? There is an argument that has been considered by the EEOC that employers may not discriminate against an employee who uses prescription narcotic medication. According to the EEOC, an employer may prohibit an employee from taking a legally prescribed narcotic medication, but the employer must give the employee a reasonable amount of time to change the medication regimen before making that demand.

In 2011, the EEOC filed suit against Tideland Electric Membership Corporation in the Eastern District of North Carolina on this issue. The matter as apparently settled. The EEOC’s complaint alleged that Plaintiff, a lineman with a chronic pain condition, was unlawfully terminated when the corporation learned he was taking a legally prescribed narcotic pain medication. EEOC contended the corporation failed to provide a reasonable accommodation when it terminated Plaintiff without giving him a reasonable amount of time to change his medication in order to keep his employment.

In Dvorak v. Clean Water Services, 319 Fed. App’x 538 (9th Cir. 2009), Plaintiff, an individual with severe neck pain and migraines, used prescription narcotic painkillers to manage his symptoms. Plaintiff’s employer placed him on leave, alleging that his prescription medications made him incapable of working. Defendant moved for summary judgment on the issues of whether Plaintiff was regarded as an individual with a disability or had a record of a disability. The court observed “Plaintiffs must show that an employer regarded limitations as precluding an employee from a broad class of jobs.” In other words, in order for Plaintiff to prevail the employer must regard him as substantially limited in the major life activity of working. Here, Defendant received a medical opinion that Plaintiff was dependant on narcotic painkillers when Defendant placed Plaintiff on leave. Supervisors told Plaintiff that they “wouldn’t even put [him] behind a computer,” or allow him to return to his field position, suggesting that they may have believed that Plaintiff was precluded from a wide range of jobs. The court held the evidence was sufficient to raise a genuine issue of material fact as to whether Defendant regarded Plaintiff to have a disability because of drug addiction. Additionally, Plaintiff demonstrated a material issue of fact as to whether he had a record of impairment when the employer knew he used painkillers and received summaries of Plaintiff’s medical records.

The EEOC has issued guidance regarding preemployment disability-related questions and medical examinations. In general, an employer may ask about current illegal use of drugs because such use is not protected under the ADA. However, an employer may not ask applicants about their lawful drug use because questions about current or prior lawful drug use are likely to elicit information about a disability. Employers are permitted to inquire about lawful drug use if the employer is administering a test for illegal use of drugs and an applicant has tested positive for drug use, which drugs may have been prescribed. Specifically, an employer may validate a positive test result by asking about lawful drug use or other possible explanations for the result.

Employers are also permitted to inquire about prior illegal drug use provided that the particular question is not likely to elicit information about a disability. In March 2011, the EEOC issued an informal discussion letter that clarifies the extent to which employers may ask about prior illegal drug use. Questions about treatment or counseling received, and inquiries about the number of times and dates illegal drugs were used are disability-related questions that are prohibited in the EEOC’s view.

Employers may ask applicants about their drinking habits, unless the particular question is likely to elicit information about alcoholism. For example, an employer is permitted to ask whether an applicant drinks alcohol or has been arrested for driving under the influence. However,

questions asking how much alcohol an applicant drinks or whether the applicant has participated in an alcohol rehabilitation program are likely to elicit information about whether the applicant has alcoholism. For example, a question about alcohol use and treatment during the past seven years would not be permissible according to the EEOC.

Drug and Alcohol Testing

The ADA prohibits employers from administering medical tests to job applicants prior to a conditional offer of hire. However, for purposes of the ADA, drug tests are not considered medical examinations. Alcohol tests are considered medical examinations and are prohibited at the preemployment stage. Post-offer, an employer may require alcohol tests if the test is administered to all individuals in the same job category. Once employment had begun, and employer may only administer an alcohol test if it is “job-related and consistent with business necessity.”

In Connolly v. First Personal Bank, 623 F. Supp. 2d 928, 931 (N.D. Ill. 2008), Plaintiff was offered a position of Senior Vice President, contingent on her satisfactory completion of a drug test. Prior to the drug test, Plaintiff informed the company that she had recently undergone a medical procedure that might result in additional medication showing up on the test. The test showed a positive result for Phenobarbital, and the company rescinded its offer of employment. The company declined to open a letter from Plaintiff’s doctor explaining the nature of the lawfully prescribed medication she was taking at the time of the drug test. The district court denied Defendant’s motion to dismiss, holding:

For purposes of the ADA, tests to determine illicit drug use are clearly not medical examinations. However, a test for illicit drug use may also, as in this case, return results for legal drug use that could affect the functioning of the employee in the specific job setting. In these circumstances there is a minimal cost to determine whether the presence of Phenobarbital was legal. The exemption for drug testing was not meant to provide a free peek into a prospective employee’s medical history and the right to make employment decisions based on the unguided interpretation of that history alone.

Under the Sixth’s Circuit’s reasoning in Bates v. Dura Automotive Systems, Inc., 625 F.3d 283 (6th Cir. 2010), an individual without a disability would not be able to challenge a drug test under the ADA. In Bates, Defendant set up a procedure to screen its employees for substances it believed could be dangerous in the workplace, including twelve substances commonly found in legal prescription drugs. Several of the employees who tested positive for the prohibited substances claimed that the corporation conducted an improper medical examination in violation of the ADA. The district court held that individuals do not need to have a disability in order to pursue a claim under ADA Title I. The Sixth Circuit reversed, holding that only individuals with disabilities can challenge an employer’s actions under the ADA.

In a lawsuit related to being fired for taking pain medications on the job, the employee stated that 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.

Employee Drug Use – Employer Guidance

So, what can companies do? First of all, companies should develop thorough and consistent policies that spell out which drugs their workers might be tested for and under what circumstances. In the case of highly sensitive positions such as airline pilots or HAZMAT drivers, every prescription must be reviewed for not only its effect on the ability to perform the job safely, the underlying condition must be evaluated for its impact on being able to safely perform the job. A blanket statement that the presence of specific legal medication is grounds for dismissal is at best a bad idea. At worst, it is probably a blatant violation of ADA.

Communication of company policies related to drug usage is a must. Employers should establish a well-defined drug workplace policy that in addition to addressing illegal drugs, addresses the use of prescription drugs. This should be conducted with your company’s legal team to ensure that all federal and state-specific guidelines are reflected in your policy.

The following is a sample of a Workplace Drug Policy:

It is a violation of our Drug-Free Workplace Policy to use, possess, sell, trade, and/or offer

for sale alcohol, illegal drugs, or intoxicants. Prescription and over-the-counter drugs are not

prohibited when taken in standard dosage and/or according to a physician’s prescription. Any

employee taking prescribed or over-the-counter medications will be responsible for consulting

the prescribing physician and/or pharmacist to ascertain whether the medication may interfere

with the safe performance of his/her job. If the use of a medication could compromise the

safety of the employee, fellow employees, or the public, it is the employee’s responsibility to

use appropriate personnel procedures (e.g., call in sick, use leave, request change of duty,

notify supervisor, notify company doctor) to avoid unsafe workplace practices. The illegal

or unauthorized use of prescription drugs is prohibited. It is a violation of our drug-free

workplace policy to intentionally misuse and/or abuse prescription medications. Appropriate

disciplinary action will be taken if job performance deteriorates and/or incidents occur.

Having a well-written policy about drug use in the workplace is essential.

The policy should include discussing the disciplinary actions and the circumstances leading up to them and the testing procedures. Employees should understand how the

test will be given, when it will be given and what drugs the test will detect. The employer should make sure the following policies are in place:

Require employees to read the employer’s workplace drug policy and sign an acknowledgment that they have done so.
For every drug test administered, document why the test was necessary and how it was performed.
Ensure test results are handled as confidential medical information.
Establish consistent responses to workers who test positive to illegal drugs.
It is important to remember that the abuse of prescription drugs is considered illegal drug use. Employers may test employees for such abuse based on a reasonable suspicion. Manager training should include examples of typical behavioral- and performance-related signs of impairment. The employer should also determine the threshold for reasonable cause to test employees for drug use, and those parameters must be consistent with legal and policy requirements. Again, safety is key. Employee communication needs to focus on the shared goal – ensuring that work can be done safely and effectively at all times.

In summary, the issue is not the medication itself, but how the medication affects the person’s ability to perform the essential functions of their job safely. Firing someone simply because they take a certain type of medication, without proving that it puts the employee or others at imminent risk, will certainly open the employer up to all kinds of legal ramifications with both ADA and EEOC.

Fit-for-Duty Testing for Cause & Other Alternatives

One possible solution if the employer is faced with an employee who has been released to work with a legally prescribed pain medication, is to authorize a Fit-for-Duty test for cause. WorkSaver, using functional testing, will objectively assess the employee’s ability to perform the essential functions of the job. However, the employer has to have a reasonable belief that the employee poses a threat before testing. Also, having an interactive dialogue with that employee and perhaps finding work that is safer for the employee to do temporarily, while on the medication, is another alternative. If the employee is on a long-term medication, then determining whether work exists for the employee to do that is safe for them or if not, is another alternative.

The Value of Drug Tests

Drug tests can be perceived as being highly intrusive, but they can be invaluable tools for preventing drug-related incidents and reducing risk. A drug-testing program curbs drug abuse because it instills a fear of getting caught, the possibility of consequences and the severity of those consequences. The structure of the drug-testing program largely determines its effectiveness. For example, in some programs, drug tests are mandatory only after an incident, limiting their deterrence value. Additionally, preemployment testing will not detect drug use that starts during employment. Before performing any drug test or adopting a drug-testing policy, employers must obtain expert legal advice that is current with both state laws and federal guidelines.

To be safe, employers should consider:

1. Using a lab that is certified by the U.S. Department of Health and Human Services or an equivalent state agency
2. Consulting with a lawyer to develop testing policies and procedures
3. Using a testing format that respects the privacy and dignity of each employee

Employers should remember that a drug test does not prove impairment. It may show that an individual is using a particular prescription drug such as an opioid painkiller, but it does not necessarily confirm that they are actually abusing the drug, impaired by it or addicted to it. Determining the risks and level of impairment from a particular prescription drug for each individual is almost impossible. Currently there are no validated instruments, expert opinions, or guidelines determining context-specific impairment due to prescription medication.

What an employer can do is define the employee’s responsibility when taking legal substances, such as opioid painkillers. These responsibilities can include:

1. 1. Talking to the health care provider about how a prescribed medication may affect work performance.
   2. Making supervisors aware if accommodations are required while using this medication.
   3. Providing proof of a valid prescription.

Hiring or contracting with a Medical Review Officer (MRO), a licensed physician responsible for receiving and viewing drug test results, strengthens drug-testing programs. Providing additional medical expertise helps because interpreting the results can be complicated.

Questions pertaining to your workplace drug policy or testing process?

Call WorkSaver at (800) 414-2174.