Drug Testing Poses Problems for Employers
SAUSALITO, CA (ASRN.ORG) -- The news, delivered in a phone call, left Sue Bates aghast: she was losing her job of 22 years after testing positive for a legally prescribed drug.
Her employer, Dura Automotive Systems had changed the policy at its sprawling plant here to test for certain prescription drugs as well as illicit ones. The medication that Mrs. Bates was taking for back pain — hydrocodone, a narcotic prescribed by her doctor — was among many that the company, which makes car parts, had suddenly deemed unsafe.
“I don’t think it should end the way it did,” said Mrs. Bates, an assembly line worker who has sued Dura for discrimination and invasion of privacy. “You tell somebody you lost your job because you’re on prescription medication and they’re like, ‘Yeah, right.’ ”
Two decades after the Supreme Court first upheld the right to test for drugs in the workplace, Dura’s concern — that employees on certain medications posed a safety hazard — is echoing around the country. The growing reliance of Americans on powerful prescription drugs for pain, anxiety and other maladies suggests that many are reporting to work with potent drugs in their systems, and employers are grappling for ways to address that.
What companies consider an effort to maintain a safe work environment is drawing complaints from employees who cite privacy concerns and contend that they should not be fired for taking legal medications, sometimes for injuries sustained on the job.
“This may be the point guard for an important societal issue,” Dr. Robert T. Cochran Jr., a Nashville pain specialist who treats three of the Dura plaintiffs, said of the lawsuit against Dura. “How do we address these drugs as a society?”
There is a dearth of data from independent groups regarding impairment from prescription drugs in the workplace, partly because the issue has not drawn broad scrutiny. But Quest Diagnostics, a prominent provider of workplace drug tests, said that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year alone. The data, culled from the results of more than 500,000 drug tests, also indicated that workers who were tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.
“It’s not nearly on employer radar screens as much as it should be,” said Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace, a nonprofit business coalition near Washington, and a senior partner at Jackson Lewis, an employment law firm. “Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse employers cannot afford not to address this issue.”
Nor is the problem limited to factory floors like the one at Dura’s plant here, where conveyor belts are in constant motion and tow drivers shuttle pieces of glass from station to station, former workers said. In Texas, a prominent prosecutor resigned in 2008 after a scandal for which he blamed impaired judgment because of prescription drugs. And in Missouri, a patient sued alleging that a doctor had torn a hole in his colon during a 2006 colonoscopy while taking the painkiller oxycodone.
Dr. Carl Rollyn Sullivan, director of addictions programs at the West Virginia School of Medicine in Morgantown, said he had treated “a lot of miners telling me the ridiculous amount of drugs they’re doing underground,” most of them legally prescribed.
Challenges for Employers
Setting rules about prescription drug use in the workplace is tricky, not least because it is difficult to prove impairment. Under Dura’s policy, a prescription drug was considered unsafe if its label included a warning against driving or operating machinery, but doctors say many users function normally despite such warnings.
Also, some employers find it difficult to deal with the problem partly for fear of violating the Americans With Disabilities Act. It prohibits asking employees about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons, according to lawyers with the Equal Employment Opportunity Commission. “We’re up against 20 years of training on the A.D.A. that essentially suggests, ‘Don’t ask, Don’t tell” said Steven M. Bernstein, an employment lawyer with Fisher & Phillips in Tampa, Fla.
Christopher J. Kuczynski, assistant legal counsel in the EEOC’s policy division for the Americans with Disabilities Act, said, “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.”
The only exception is for police officers, firefighters and others in public safety jobs, Mr. Kuczynski said. They can be required to self-report the use of prescription medication if their inability or impaired ability to perform their job functions would result in a direct threat, he added.
Even with bus and truck drivers, nuclear plant workers, and others in jobs that the federal government deems “safety sensitive,” employers are required to test for only six categories of drugs that do not cover synthetic painkillers like OxyContin and Vicodin, anti-anxiety drugs like Xanax, or other controlled prescription drugs. (Because the test looks for codeine and morphine, which experts say are far less abused than the synthetics, many employers wrongly assume it looks for all opiates.)
That is just a devastating critique of the government’s role in this,” said Dr. Robert L. DuPont president of the Institute for Behavior and Health near Washington. “It’s a very serious hole in the system.”
Dr. Donna Bush, a senior forensic toxicologist at the Substance Abuse and Mental Health Services Administration, which sets parameters for federal drug testing, said the group was not pushing to add more prescription drugs.
“Which ones do we add?” she asked. “Drug testing for illicit illegal drugs is very easy because presence is an offense.”
Employers can choose to test for more drugs, which is what Dura decided to do at its Lawrenceburg plant in 2007. Citing concerns about drug use and worker safety, Dura hired an independent company to administer random drug tests. Dura chose to screen for 12 types of drugs, including hydrocodone and oxycodone.
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Liz Di Bernardo