Drug Testing for Legal Substances
Wednesday, October 14, 2009 | 0
By Eugene F. Keefe
Synopsis: Can you test employees for legal prescription drug use?
Editor's comment: While looking up other things, we note there is a Tennessee employer battling two separate lawsuits in which their employees claim they were forced to undergo what they assert were unlawful drug tests that checked for various prescription medicines such as painkillers.
The suits claim the employer Dura Automotive Systems Inc. had no valid reason to order the tests and took adverse action against employees who tested positive for legally prescribed drugs, including actually firing some who refused to stop taking the medications or couldn't work without them.
The worst thing that happened is the employer was sued by the Equal Employment Opportunity Commission in federal court in the Middle District of Tennessee. The suit alleges the drug tests, initiated in 2007, were unlawful medical inquiries and were proscribed by the Americans with Disabilities Act. The EEOC contends Dura Automotive:
- Screened out persons with disabilities,
- Failed to keep confidential the information obtained from drug testing and
- Took unlawful actions against at least thirty employees who tested positive for legally prescribed medications.
The second lawsuit is a private class action filed last year in the same court. It has been stayed pending review of certain legal issues by the U.S. Court of Appeals for the 6th Circuit. The suit was filed on behalf of seven employees, including one woman who suffered from chronic back pain, depression and bipolar disorder and was allegedly fired two months after drug tests revealed she tested positive for "certain chemicals."
According to court documents, the woman was never cited for any attendance or safety violations while taking prescribed medications. The woman alleged after she took the drug test, a nurse singled her out in front of other employees, announcing she had just tested positive for ingesting legal prescriptions.
Most observers feel this is a controversy of first impression in the human resources field. There has never been a case involving legal prescription drug testing in the workplace: It highlights the fact any drug testing must proceed under the requirements and duties of both sides under the Americans with Disabilities Act.
We feel you may be able to test as this employer did but there must be a good and thoroughly documented reason for drug testing employees who are not taking illegal drugs but prescription drugs required by their physicians.
It may be similarly important to make sure you do the drug testing properly and fairly. Don't single anyone out for such testing and keep the results within your HIPAA circle. If you are unfamiliar with what a HIPAA circle is, send a reply.
The key to justifying such testing are health and safety concerns for the worker and their co-workers. You can always document you need to keep employees safe and prevent workplace accidents and injuries.
We feel U.S. employers can always test for any drugs, durable medical equipment or anything else of a medical nature used in the work place, if safety is deemed an issue. We don't feel it makes any difference if the drug is legal or not, prescription or nonprescription. If a drug has an adverse affect on an employee's mind, memory or motor skills, especially when it is being taken in combination with other drugs, an employer has a right to know and a duty to investigate.
If you have thoughts and comments, please do not hesitate to reply or post your thoughts on our blog,
======
Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates. This item from the firm's blog, www.keefe-law.com/blog, was reprinted by permission.
======
Comments