Drug Testing Raises Its Head
Once a hot employment law issue, drug testing has been cool for quite some time. Most courts, including the U.S. Supreme Court, have ruled that there’s nothing wrong with testing for unlawful drugs, particularly in the private sector. So, for two decades, an increasing number of employers do drug testing routinely. The types of drug testing most commonly done are pre-employment, for cause or reasonable suspicion (for example, when an employee is involved in an accident at work, seems to be under the influence of something, etc.), and random.
According to an article in the New York Times, the issue of drug testing is back. This time, the issue relates to testing for prescription drugs. I doubt that few dispute the dramatic increase in the use of prescription drugs in recent years. I also doubt that few dispute the routine sharing of prescription drugs among employees. Finally, I doubt that few dispute a prescription drug addiction problem in this country. All of this leads to a growing concern among employers that prescription drugs could be impairing their employees while at work, particularly if the employees are involved in safety-sensitive jobs.
In Bates v. Dura Automotive Systems (presently pending in a Tennessee federal court), several former employees are challenging the termination of their employment because they tested positive for certain prescription drugs (like hydrocodone, a narcotic that treats pain) added to the unsafe list, along with illegal drugs. This kind of lawsuit is popping up around the country as employers try to deal with safety concerns.
There are legitimate arguments on both sides of the issue. A prescription drug is legal medication given to an employee by a doctor. There’s very little data on the impairment from presccription drugs in the workplace. Prescription drugs, even the potent ones, make it possible for some employees to do jobs they couldn’t do without the medication. Employers who include prescription drugs in their drug testing programs because there is a warning that the drug can cause drowsiness or that driving and operating machinery shouldn’t occur ignore the fact that most people who take it don’t experience drowsiness and can operate machinery without a problem.
On the other hand, employers have legitimate concerns about employees operating dangerous machinery or equipment who, because of the effect of prescription painkillers, are not as alert as they should be and can cause another employee to be injured or killed. There is also data indicating that when employees are tested for prescription drugs after an accident, the involvement of prescription opiates has risen dramatically.
Possible legal problems include invasion of privacy, violation of the Americans with Disabilities Act, and violation of the law in certain states. While it may seem reasonable for employers to ask employees involved in dangerous jobs to self-report the use of some prescription drugs, as long as the employer then applies this knowledge on a case by case basis instead of to all employees taking the drugs, nothing is ever that simple.
Right now, however, it’s unclear how the law will end up on testing for prescription drugs, and it won’t be clear for a while. Some employers will choose to err on the side of preventing serious accidents as opposed to concern about being sued for terminating an employee who tests positive for a “bad” prescription drug. It’s important to obtain legal advice when considering this issue or setting up a drug testing program that includes prescription drugs.
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About Chris Parker
Chris Parker's practice focuses on the representation and counseling of companies in matters pertaining to the workplace and the protection of their intellectual property and trade secrets. In addition to serving as an advocate for clients, Mr. Parker is also trained as a mediator and frequently serves as a third-party neutral.
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Jimmy Daniel provides counseling to businesses of all sizes related to the employment relationship. He assists in the drafting of employment agreements, policies, and handbooks, as well as provides guidance related to compliance with federal, state, and local legislation such as the Fair Labor Standards Act and the Family and Medical Leave Act.
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While serving in an Of Counsel relationship with the firm, Mr. Bridgesmith also serves as the Executive Director at the Institute for Conflict Resolution at Lipscomb University and as an officer and principal in Strategic Resolutions Group, LLC. In these roles, Mr. Bridgesmith brings over 30 years of legal experience in dispute resolution and innovative workplace strategies to clients, students and business entities alike.
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I forsee a new cottage industry. Soon you will be able to not only send your employees to be tested for drugs, but if they have a prescription you can also have them tested for alertness and response time while taking their medication.
Oh joy.
But Nae, this might create a lot of new jobs.
John
I’ve been in HR for … well, longer than I’m going to publish, and I’ve seen the whole spectrum. The company I just left tested every new hire in every position; my current company tests none. While we did identify a few people with some “issues” that were given the opportunity to make some lifestyle changes, I really don’t know if the pros would outweigh the cons.
Bradley,
Bradley,
Thanks for your comment. Your point is well made and well taken.
I see no point in testing every new hire in every position. But I also question not testing anyone, depending on what the business is. If there are dangerous jobs, those folks should probably be tested. It seems pointless to test an administrative assistant, however. If there are no dangerous jobs (let’s say in a law firm), drug testing seems pointless.
Thanks again for your insight.
John