Tag: drugs

November 20, 2019

Calling Your Employment Lawyer – Prescription Drugs

I have been counseling companies on employment matters for approximately 12 years. One thing that I have found to be consistent is that companies avoid engaging employment counsel until they feel it is an absolute necessity. However, in most scenarios, if counsel is engaged when you first learn of the situation, corrective action could be taken to help avoid claims against the company. It is much cheaper to prevent litigation than to defend it. This is true in medical accommodation issues, such as those involving employee use of prescription drugs.

So, what does a call with an employment lawyer sound like?

My actual conversations with clients are confidential. But I have attempted to summarize the tone of these client conversations through the following example. The facts and circumstances of this scenario are purely hypothetical. I’m using them for demonstrative purposes only. Don’t rely on this article as legal guidance for any real-world situation.

“She’s Taking Drugs!”

Client: “Good Afternoon, Julie.”

Lawyer: “Good Afternoon!” It has been quite a while since we last spoke. How may I assist you?”

Client: “I promise my lack of communication with the firm is not personal in any way. But we go to great lengths to minimize our calls with outside counsel in order to control legal costs.”

Lawyer: “I completely understand. None of my clients ever want to speak to me about work. It’s the nature of my business. Anyway, how can I help?”

Client: “We have an employee that was recently hired as a full-time Administrative Assistant in an office environment. She disclosed upon hire that she has a physical disability. And it’s sometimes necessary for her to take prescribed narcotics for the pain associated with her disability. She indicated that she could perform the essential functions of the job with or without a reasonable accommodation.”

[Click here for more on reasonable accommodations.]

“What’s Her Condition?”

Lawyer: “Does the company have a standard process for handling reasonable accommodation requests under the ADA [Americans with Disabilities Act]? If so, was the procedure followed in this case, and did the employee return the required paperwork?”

Client: “Yes. The company has written policies and procedures to address an employee who discloses a disability and requests accommodation. The documentation was provided to the employee, completed by her treating physician, and returned to the company.”

Lawyer: “Good. What does it say?”

Client: “According to the medical certification, the employee has undergone two separate back surgeries. It says she is still suffering from an extreme amount of low back pain.”

{Click here for more on the interactive accommodation process.]

“Can You Accommodate?”

Lawyer: “What accommodation has been requested by the employee and treating physician?”

Client: “Her doctor has prescribed narcotics to take as needed for pain. The employee is asking for an exception to the company’s Drug-Free Workplace Policy and the ability to take the prescribed narcotics during her shift as directed when needed for pain. We don’t make exceptions to the Drug-Free Workplace Policy, and therefore, we would like to deny the accommodation request and terminate the employee. All new hires are required to pass a nine-panel drug test and are subject to random and post-accident drug testing while on the job.”

Lawyer: “Is the position a sedentary job, or does it require physical activity? Does the position require driving?”

Client: “The Administrative Assistant position is a full-time desk job that does not require travel or driving and may involve bending or lifting of not more than ten pounds.”

Lawyer: “Has the company ever made an exception to the Drug-Free Workplace Policy for someone that tested positive on a pre-employment drug test?”

“Well, in the Past . . . “

Client: “Yes. The President of the company has a teenage son that works in the warehouse. The son tested positive for marijuana on a pre-employment drug test, but he stated that he doesn’t smoke marijuana. He said he was at a party where others around him were smoking it. The company hired the employee. But he had to agree not to use marijuana or be around others that ingest marijuana in the future .”

Lawyer: “What about other situations involving employee use of prescription drugs?”

Client: “We haven’t reached this situation before involving prescribed narcotics.”

Lawyer: “Based on the information provided, it sounds like this employee is able to perform the essential functions of the Administrative Assistant job with a reasonable accommodation to the company Drug-Free Workplace Policy when necessary that would allow her to take prescription drugs for pain as needed while working. Due to the nature of the job, the accommodation requested would unlikely pose an undue hardship on the company or put the safety of the employee or coworkers in danger. Therefore, I think the company would have an obligation to make this accommodation. Are you aware of any other information that might support a different analysis?”

“What About . . . “

Client: “Is it possible for to argue that allowing an exception to the company’s Drug-Free Workplace Policy would create an undue hardship on us and possibly put the company at risk of losing one or more government projects since the contractual terms with the Federal Government require us to adhere to the Drug-Free Workplace Policy. We also feel like it will lead to a slippery slope when addressing these employee issues in the future.”

Lawyer: “As you know, an employer does not have to provide a reasonable accommodation if it imposes an ’undue hardship.’ Here, I’m afraid it would be difficult to prove that the requested accommodation under the ADA would cause an undue hardship. It should also be noted that the exception to the Policy would be for a prescribed medication rather than an drug being used illegally.”

Client: “Ugh! So What Should We Do?”

Lawyer: “If the employee can safely perform the essential functions of the job while taking the prescription drugs, then the requested accommodation should be granted. I suggest that someone from Human Resources speak to the employee to go over any restrictions she may have while under the influence of the prescribed medication in an effort to reasonably accommodate her disability and keep the workplace and employees safe. Unfortunately, you might need to modify her non-essential duties during periods of an accommodation.”

Client: “Do we have any alternatives here? Can we allow the employee to continue to work, but send her home when she is in pain and needs to take the prescribed medication?”

Lawyer: “Not without some evidence of increased risk of serious harm from letting her continue to work. If the treating physician believes the employee can safely perform the essential functions of the job while taking the prescribed narcotics, it would be risky for the company to deny the employee’s request. If you have a specific reason to believe the medical opinion isn’t reasonable then you might be able to get a second opinion.”

“Prevent Retaliation”

Lawyer: “And if you witness concerning behavior when she’s taking the medication, then we might want to revisit this. But her managers shouldn’t be singling her out or scrutinizing her more than others because of the prescription drugs she takes. That could create a retaliation situation.”

Client: “Yeah, I’ll be sure to mention that, and I hope we don’t have a follow-up call along those lines. Maybe it will all just work out.”

Lawyer: “I hope so. But you can certainly give me a call back if anything changes or you or her supervisors have additional questions.”

Be Proactive

Some of the calls that the firm receives are straightforward, but most of them involve relatively complicated fact patterns and nuanced solutions. In all situations, employers should understand their legal obligations with respect to protected activities to avoid future claims and litigation. Often, a simple communication with outside counsel could have prevented a claim from being filed in the first place. It’s best to be proactive. You can do this by developing and training all staff on the policies and procedures necessary to handle complicated personnel matters when they arise. Make sure they know when to reach out for expert advice to prevent issues from escalating.

To receive our employment law updates and free webinar announcements, click here to sign up for our email newsletter or follow us on LinkedIn.

October 24, 2018

OSHA Permits Post-Accident Drug Testing

On October 11, 2018, the U.S. Occupational Safety and Health Administration (OSHA) issued a clarification of its position on post-accident drug testing. The new guidance addresses commentary that OSHA included with a May 2016 anti-retaliation rule. OSHA now asserts that the rule “does not prohibit . . . post-incident drug testing.”

[Note that the Drug-Free Workplace Act does not require any employers to drug test employees.]

29 C.F.R. § 1904.35

That’s the citation for the rule OSHA amended on May 12, 2016, to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.

Specifically, 29 C.F.R. § 1904.35(b)(1)(iv) states: “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

The rule itself does not mention drug testing. But OSHA’s 2016 commentary accompanying it did.

At that time, the agency wrote: “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.” It then went on to say, “this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”

OSHA’s 2016 commentary included the following supposed standard: “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

2018 “Clarification”

It’s hard to argue that OSHA’s recent announcement clarifies the above language from the 2016 commentary. Instead, it interprets the text of the rule itself, which never mentioned drug testing in the first place. Obviously, the current administration in D.C. has a different take on this issue than the previous one.

In the October 11, 2018 memorandum, OSHA explains that “Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

To emphasize this change in position, the new OSHA directive adds that “To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.” It then specifically identifies four OSHA documents from October and November 2016.

When to Conduct Post-Accident Drug Testing

OSHA’s new guidance memorandum approves of the following forms of drug testing:

Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

The last item in this list seems to set a new standard for post-accident drug testing under the anti-retaliation rule. It essentially replaces the 2016 “likely to have contributed to the incident” and “accurately identify impairment caused by drug use” analysis with a more straightforward permissive approach. That is, OSHA now suggests that post-accident testing is presumptively lawful. But if the employer only tests the employee who reported the injury, then this would imply a retaliatory purpose.

In other words, the takeaway for employers is that you generally can drug test employees following a workplace incident. But don’t do it in a way that only targets the reporter, hence discouraging people from reporting safety issues.

Employers May Revisit Post-Accident Drug Testing Protocols

Companies that changed their practices in response to the 2016 rule and OSHA commentary may now reconsider their approach.

To be clear, OSHA’s new interpretation does not require employers to conduct post-accident drug testing. Rather, the clarification relieves employers of much of the concern and uncertainty that the 2016 OSHA commentary created.

Employers who do utilize post-accident drug testing should do so rationally and consistently. Ad hoc or inconsistent testing could lead employees to complain of retaliation under OSHA rules or other legal authority.

New York employers should also read “Drug Testing New York Employers.”

May 2, 2018

Drug Testing New York Employees

Many employers test their employees for drug use. Some test only during the hiring process. Others require drug testing for existing employees on either a periodic or occasional basis. This post doesn’t weigh in on whether your organization should drug test employees. But it provides an overview of some of the legal issues involved.

Employee Rights Under New York Law

New York’s Labor Law protects employees’ legal use of “consumable products” before and after work, as long as the employee is off the employer’s premises and is not using their employer’s equipment or other property.

This means that, with a few possible exceptions, New York employees have the right to smoke cigarettes and drink alcohol outside of work. Employers usually cannot discipline or decline to hire employees for engaging in these activities.

However, the law does not prohibit employers from drug testing or disciplining employees who use illegal drugs, even if they only do so while off duty.

Medical Marijuana

New York’s legalization of medical marijuana adds one further caveat for employers.

The Compassionate Care Act permits New York residents (and individuals receiving treatment in the state) with a qualifying “serious condition” to obtain marijuana from licensed dispensaries for medicinal purposes. As of April 24, 2018, there were 52,435 certified medical marijuana patients in New York. That’s only about one-quarter of one percent of the total population of New York State.

Those certified patients do receive some job protections. However, the scope of those protections remains somewhat murky. Among other factors, the law does not require employers to violate federal law or federal contracts. Since marijuana remains an illegal drug under federal law even for New York certified patients, there may be situations where employers could discipline employees for testing positive for marijuana use.

Moreover, New York law does not give anyone, even if certified as a medical marijuana patient, the right to smoke marijuana, use it in a public place, or be “impaired” at work. Unfortunately, drug testing typically cannot measure impairment per se. Instead, it measures the presence of a drug in one’s body. Thus, a drug test alone may not conclusively establish that a certified patient has misused marijuana.

ADA Considerations

The Americans with Disabilities Act restricts employers’ medical inquiries and examinations of employees. Drug and alcohol testing are medical examinations, which usually must be job-related and consistent with business necessity. However, the ADA does not cover testing for illegal drugs.

Alcohol is not illegal, so employers must have a legitimate business reason for alcohol testing. There must be some basis for conducting alcohol testing and it cannot be done on an arbitrary basis.

Employers may require alcohol testing as a condition of return to work from an alcohol rehabilitation program if the employer believes the employee will pose a direct threat if not tested.

To avoid potential violations of the ADA’s confidentiality requirements, employers should maintain drug test results in employees’ separate medical files. They should only be available to managers with a need to know the results for valid administrative reasons.

Drug Testing Procedures

Under the federal Omnibus Transportation Employees Testing Act of 1991, some employees within the transportation industry are subject to mandatory drug and alcohol testing rules. The rules apply to employees in “safety-sensitive” positions, such as pilots, airline mechanics, truck drivers, and bus drivers.

Although the federal transportation drug testing rules do not technically apply to most employees, they provide a detailed set of testing protocols and procedures often voluntarily borrowed by other industries.

The transportation industry rules identify these drug testing scenarios:

Pre-employment
Random
Reasonable Suspicion
Periodic
Post-Accident

They also establish rigorous laboratory parameters to ensure accurate test results. Most employers who require employee drug testing us specimen collection/analysis professionals who comply with federal Department of Transportation standards.

Drug Testing Unionized Employees

Drug testing employees who belong to a bargaining unit represented by a union is a mandatory subject of bargaining. So, employers with union-represented employees must negotiate with the union over any employee drug testing programs.

However, private sector employers generally do not have to negotiate with a union over pre-employment drug testing. Because applicants are not yet employees, the National Labor Relations Board has found that employers have no obligation to bargain over pre-employment requirements.

Drug Testing Public Employees

Unions represent most public sector (i.e., government) employees in New York. And, like private companies, most governmental employers in New York must negotiate with their employees’ unions over drug testing.

Beyond any bargaining obligations, constitutional restrictions may apply to public employee drug testing. Because of the Fourth Amendment’s protection against unreasonable searches and seizures, public employers must have “individualized suspicion” to drug test an employee. Where there is “individualized suspicion,” the employer may drug test the employee when a “special need” outweighs the employee’s privacy interest.

The Drug-Free Workplace Act

Employers with federal grants and some federal contractors are subject to the federal Drug-Free Workplace Act. Covered employers must adopt a drug-free workplace policy and establish a drug-free awareness program. The law does not require any employers to drug test any employees.

For more, read What Does the Drug-Free Workplace Act Require?

Elements of an Effective Drug Testing Program

Employers who choose to test for drug or alcohol use regularly should implement a written policy. The policy should identify:

Prohibited Conduct
Occasions for Drug Testing of Employees/Applicants
Test Collection and Analysis Procedures
Consequences of Failing a Test
Provisions for Rehabilitation and Recovery

In addition to drug and alcohol testing, employers should consider making available an Employee Assistance Program to address substance use, among other employee issues. Especially if reasonable suspicion testing will be used, employers should also provide training to supervisors and employees regarding signs of substance abuse.

For more insights, updates, and best practices regarding employment law and the workplace subscribe to our free email newsletter.