Many Americans are addicted to powerful narcotics to treat chronic pain. According to HHS data, opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than in 1999. In 2016, the prescribing rate had fallen to the lowest it had been in more than 10 years, but was still at 66.5 prescriptions per 100 persons (over 214 million total opioid prescriptions annually). What can employers do to protect themselves from workers who perform dangerous work and may be taking strong narcotics? There are restrictions from the Americans with Disabilities Act (ADA), but employers must follow a recommended course of action to legally respond to job-related safety concerns.
A recent Ohio case shows employers the roadmap for addressing an employee taking prescribed narcotics (and unprescribed ones) when the employee works in a dangerous environment or has job duties that directly impact safety. The employee, a manufacturing production manager, worked around heavy machinery for a portion of his day. The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours. Some of his painkillers were unprescribed and obtained from co-workers. The employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely. The employee failed to do so. A co-worker reported his Vicodin use, the employer drug tested the employee – and he tested positive for hydrocodone (the opioid found in Vicodin). The employee was put on leave to obtain a release from his doctor (and sent to the company EAP). The employee disclosed his morphine prescription, and the employer informed him to confer with his doctor about alternative treatment options to opioids because he could not remain working while using morphine. The employee refused and told his employer that he would not stop taking morphine medication. The employer then terminated his employment. Of course, the lawsuit followed.
What are an employer’s legal obligations? Painkillers pose a significant safety risk to employees in dangerous jobs and work environments. In fact, the label on his prescription morphine warned against operating heavy machinery. The ADA says that employers must make individualized assessments by reviewing the medication, job duties and work environment (in each case) and not make generalized assumptions about the use of certain drugs without medical evidence. A blanket “no prescription medication use” rule violates the ADA. Employers may request an employee to disclose medications that impact safety or negatively impact or restrict their job duties. Then, when prescription drug use is disclosed, the employer must engage in an interactive process so the employee can explore and discuss alternative treatments with their doctor (to lessen the safety risk) and be forced to disclose the restrictions and impacts of their current medications. An employee cannot decide unilaterally that he can safely perform his job while using the prescription and his employer should conduct a direct threat analysis before denying him work. The employee can not impede the employer’s process by refusing to participate in the situation. An employer is legally permitted to investigate the extent of the employee’s disability (disc disease and arthritis) and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication or alternative treatment could reasonably accommodate his disability.
Due to the complexities of these situations, employers should speak to an experienced human resources professional or their attorney about these situations, and to develop the written workplace policies that impact opioid and prescription drug use situations.