Page 92 - Occupational Health & Safety, June 2018

D r u g & A l c o h o l Te s t i n g
scription drug abuse impacts millions of Americans from all socio-economic, po- litical, age, gender, and ethnicity groups, DOT employers are not the only ones who have to create strategies and procedures in the workplace.
Beyond DOT Testing
The DOT drug testing panel change affects not only the 6.3 million DOT drug tests that are projected to occur this year on covered employees and candidates, but also how employers address prescription drug use in the workplace beyond DOT positions. Twenty states and Puerto Rico all have laws that reference the DOT, HHS, or SAMHSA drug testing panels, and tens of thousands of employers look to the DOT panel and procedures as a guideline in establishing their non-DOT drug testing policies.
Employers not covered by DOT drug testing regulations and DOT employers with non-DOT covered employees need drug testing policies that address the use of legally prescribed drugs that may affect an employ- ee’s ability to safely perform job duties.
Most drug testing policies prohibit the use, sale, and possession of illegal drugs. Many also prohibit the use of prescription drugs without a valid prescription. Em- ployerscanandshouldtestemployeesfor illegalprescriptiondruguseandillicitdrug abuse. Further, employers may test job ap- plicants pre-employment and continue to monitor for abuse in the workplace. The Americans with Disabilities Act (ADA) specifically states that “tests for illegal drug use are not medical examinations and are not evidence of discrimination against re- covering drug abusers when used to ensure the individual has not resumed the illegal drug use.” The ADA considers the use of a prescription drug not prescribed to an individual as illegal drug use and, as such, employees can be disciplined for violating company policy against illegal drug use.
However, policies regularly need to be reviewed and updated to address an em- ployee’s use of legally prescribed and over- the-counter drugs that may affect his or her ability to perform his/her job duties or potentially expose other employees or the public to danger. An example of suggested language is:
Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician’s pre- scription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees, or the public, it is the employee’s responsibility to use ap- propriate personnel procedures (e.g., call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices.
There are several federal regulations and state laws prohibiting employers from inquiring whether an employee is taking prescription drugs. The Rehabilitation Act, the ADA, and many state disability laws prohibit asking disability-related questions. However, such inquires can legally be made if the questions are both job-related and consistent with business necessity.
What Should an Employer do if an Employee is Taking Medications That May Pose a Direct Threat?
The Equal Employment Opportunity Commission issued Enforcement Guid- ance: Disability-related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), advising that generally, “a disability-relat- ed inquiry or medical examination of an employee may be ‘job-related and consis- tent with business necessity’ when an em- ployer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. Disability-re- lated inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and con- sistent with business necessity. In addi- tion, periodic medical examinations and other monitoring under specific circum- stances may be job-related and consistent
with business necessity.”3
This standard may be met under the fol-
lowing circumstances:
■ When an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition;
■ If an employer is given reliable in- formation by a credible third party that an employee has a medical condition;
■ The employer observes symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.
In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related in- quiries or require a medical examination.
An employer’s reasonable belief that an employee’s ability to perform essential job functions will be impaired by a medi- cal condition or that s/he will pose a direct threat due to a medical condition must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or re- quiring a medical examination. Such a be- liefrequiresanassessmentoftheemployee andhis/herpositionandcannotbebased on general assumptions.
Nina M. French is the Managing Partner for the Current Consulting Group (CCG) with more than 25 years of experience in employ- ee screening. Christine M. Jensen, SPHR®, CWDP, SHRM-SCP, is the Senior Human Resource Consultant for CCG. No portion of this article may be reproduced, retrans- mitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When per- mission is granted to reproduce this article in any way, full attribution to the author and copyright holder are required.
REFERENCES
1. 49 CFR Part 40 Section 40.137(e)(3) 2. 49 CFR Part 40 Section 40.327
3. Enforcement Guidance: Disability-related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act (ADA)
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