Recent statistics regarding substance abuse in the workplace, available on the federal Department of Labor website, suggest that there is a general downward trend in the use of certain illegal drugs (such as cocaine and methamphetamine) in the workplace, but a corresponding upward trend in the illicit use of prescription drugs. Credible sources suggest that abuse or misuse of prescription drugs now constitutes thirty percent of all illicit drug use in the workplace.
There are any number of ways in which prescription drugs can be used illegally or unsafely – in excess of the prescribed amount, in combination with other substances contrary to the directions of the prescribing physician, and by doing things while taking the drugs which are expressly prohibited by the prescription (such as driving and operating dangerous machinery).
Prescription drug abuse gives rise to several employment concerns. Because of employee privacy rights (under state laws and HIPAA), and the ADA (which prevents employers from making enquiries which may elicit information about a disability), employers are left wondering what to do about employees who are believed to be taking prescription drugs (following surgery, for instance) which might render them incapable or unsafe in the workplace, or an employee who is believed to be using prescribed medications to excess.
When it comes to workplace investigations and drug testing, many of the same rules apply to prescription drugs as apply to illegal drugs. Assuming that an employer has a valid drug testing policy in place, testing may be used to discover illegal prescription drug use. Indeed, if a workplace is a state or federal statutory Drug Free Workplace, such testing may be required in certain circumstances.
The EEOC, which enforces Title I of the ADA, has issued an opinion stating that one does not violate the ADA by (i) asking an employee whether he or she is currently engaged in the illicit use of a prescription drug (although such questions should only be asked with caution, and ideally, having consulted an employment lawyer), or (ii) conducting drug testing for the illicit use of prescription drugs, and validating the results of the test by asking whether the employee is using any detected prescription drugs “as directed by a legitimate prescription written by a professional medical practitioner licensed to prescribe” such drugs. The EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations is essential reading in navigating this area, though it should be noted that this document has yet to be updated following the amendments to the 2008 ADA.
Finally, Georgia criminal law prohibits individuals from taking any drug (prescription, OTC or illegal) that renders them less safe to drive – therefore, if someone takes a painkiller with a “do not drive” warning on the prescription, and subsequently has a traffic accident, it will be extremely difficult to evade criminal consequences, even if the individual had not taken excessive amounts of the drug. This has serious implications for anyone who employs drivers. If an employer has knowledge that one of its employees is violating the law by driving unsafely under the influence of drugs while on the job (even if taking prescription medications pursuant to a prescription), the employer has a duty to do something about it to prevent liability for the company in the event that a third party is injured.
As a general rule, employee handbooks should include substance abuse policies, the contents of which will vary, depending upon the employer and its participation in a Drug Free Workplace program (such as the Georgia program which entitles employers to a 7.5% discount on workers’ compensation premiums and imposes certain requirements on participants). Substance abuse policies can broach the subject of prescription drug abuse by stating that employees are expected to comply with state and federal law, and refrain from using any drug which would impair their ability to drive or work safely, and to heed physicians’ directions and label warnings. Generally, policies may also state that when there is a reasonable suspicion that any employee is under the influence of a drug which might impair their driving/machine operation skills, that testing will be conducted. Needless to say, specific policies should be drafted or reviewed by an employment lawyer practicing in the jurisdiction where the affected employees work.
By: Eadaoin Waller, senior associate in our Corporate Department
