Opioid Testing by Employers Is Becoming More Common

Extra screening isn’t just by employers covered by new DOT rule

By Allen Smith, J.D. Jan 24, 2018
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The opioid epidemic—the growing problem of individuals abusing prescription painkillers—has resulted in more employers testing for these drugs in the workplace. But is such testing legal? It is, drug testing experts say, as long as certain procedures are followed.

Effective Jan. 1, the U.S. Department of Transportation (DOT) requires employers regulated by the department to conduct opioid testing, said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y. The rule applies to commercial motor vehicle drivers, flight crew and other aviation-related workers, railroad employees, transit workers, certain pipeline employees, and marine employees regulated by the U.S. Coast Guard.

While not specifically required, Russo said, opioid testing among employers of other workers "has become more common over the last several years due to the prescription painkiller epidemic."

For companies with safety-sensitive positions that are not covered by the DOT regulations, testing for opioids is a prudent way to limit risks and liabilities, said Laura Shelton, executive director of the Drug & Alcohol Testing Industry Association in Washington, D.C. Safety-sensitive jobs might include construction workers, warehouse employees and machinery operators, she noted.

Employees who abuse opioids might injure themselves or others on the job, damage property, steal from employers or customers, be late or absent more often, do work of poor quality or quantity, or create morale problems, said Eric Hobbs, an attorney with Ogletree Deakins in Milwaukee.

Is Opioid Testing Legal by Employers Not Regulated by DOT?

As long as employers follow these guidelines, Shelton said, they can test employees specifically for opioids:

  • State drug testing laws are followed.
  • A medical officer reviews positive test results to ensure that an employer is informed only of the use of a prescription drug that is illegal without a valid prescription. It is up to employees to coordinate communication between their physicians with the medical officer to show that they have prescriptions for drugs that show up in the test results.
  • Drug-free workplace policies clarify which substances are prohibited, including opioids when there aren't prescriptions.

"By testing for illegal opioid use within the workplace, employers are protecting their employees and their companies while also providing a means to identify employees that can benefit from assistance through the organization's employee assistance [program]," she said. "The use of opioids within the United States is staggering, and the workplace … is a perfect place to use established programs to identify and get persons [who need] treatment the help they deserve."

While many employers offer referrals to employee assistance programs and provide last-chance agreements for workers who test positive for drug use, for some employees a positive test will mean immediate termination, noted Jacquelyn Thompson, an attorney with FordHarrison in Washington, D.C.

She cautioned that the Americans with Disabilities Act prohibits employers from discriminating against anyone who takes a legally prescribed medication, including opioids. That said, she noted that employers have been held responsible for the actions of its employees who were under the influence of drugs.

Currently, most employers do not test for opioid use, said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles.

But Dale Deitchler, an attorney with Littler in Minneapolis, said he anticipates an increase in testing among employers not covered by DOT regulations, given the national opioid crisis.

Medical Review Officer's Role

Deitchler said employers are in compliance with federal law as long as a medical review officer is involved.

Russo also said that employers who are not covered by the DOT rule should still follow DOT regulations if they are going to test for opioids and should be sure to use a medical officer to review all positive drug test results for potential legal use.

If the medical review officer determines that the drug is being used lawfully, he or she may excuse the lawful positive result. This officer is a licensed physician with expertise in analyzing drug test results, Russo noted.

The medical review officer gives an applicant or an employee the opportunity to confidentially explain whether there is a lawful reason for a positive drug result before it is reported to the employer.

[SHRM members-only toolkit: Screening by Means of Pre-employment Testing]

But the medical review officer has the option of reporting the use of prescription medication to the employer anyway if he or she determines that the employee's continued use of the medication is likely to pose a significant safety risk, she added.

Be careful that employees who are using the drugs with valid prescriptions are not treated as drug abusers, Thompson cautioned.

Prescribing Physician's Explanation

The employee should be granted up to five days to have his or her prescribing physician contact the medical review officer and explain the use of the opioids before the officer makes a report to the employer, Russo said.

"The prescribing physician will be asked whether the covered employee can safely perform his or her safety-sensitive functions while taking the medication or whether the medication can be changed to one that does not make the covered employee medically unqualified and/or does not pose a significant safety risk," she noted.

 

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