Over two million Americans are estimated to have a problem with opioids. According to the latest survey data, over 97 million people took prescription painkillers in 2015; of these, 12 million did so without direction by a doctor. Between 1960 and 2005, consumer expenditures on prescription drugs rose from $2.7 billion to $200.7 billion. Total spending on prescription drugs in the U.S. rose 12.2% to nearly $425 billion in 2015. An estimated 6.4 million people reported misusing psychotherapeutic drugs in the past month, including 3.8 million people who were misusers of prescription pain relievers.
 RESULTS FROM THE 2015 NATIONAL SURVEY ON DRUG USE AND HEALTH: DETAILED TABLES The California State Task Force on Prescription Drug Misuse Summary Report and Recommendations on Prescription Drugs: Misuse, Abuse and Dependency
 2016 SAMHSA’s National Survey on Drug Use and Health
It is nearly impossible to deny the fact that America is in a crisis. The prescription drug abuse epidemic spares no age group, socio-economic class, or geographic area of the United States. Additionally, no employer is spared from the impact of prescription drugs. While employers often believe that a drug testing policy alone can keep their workplace 100% drug-free, nothing could be further from the truth. Prescription drugs are legal, and that fact alone makes handling them in the workplace more challenging than illegal drugs. Employers can designate Medical Disclosure Policies for safety-sensitive positions that they feel prescription drugs could pose a threat to workplace safety. If you don’t already have a Medical Disclosure Policy in place you may be opening yourself up to legal drug use on the job in your safety-sensitive positions.
Prescription drugs, even when used as directed for a legitimate medical reason, have side-effects that can cause users to be less alert, dizzy, nauseous, or, in some cases, to hallucinate. These side effects can have negative repercussions in the workplace. Imagine the increase in errors, speed, and accuracy for an administrative staff member who has even one of the documented side effects of prescription drugs. Now, imagine the effects of those same side effects on a truck driver, pilot, data security specialist, home health specialist, daycare worker, or rail conductor. It is not difficult to see how, in safety-sensitive positions, the consequences could be not only worse but also further reaching. For Department of Transportation (DOT) employers, the addition of semi-synthetic opioids in January 2018 made many breathe a sigh of relief, believing that the addition of those highly abused drugs provided a solution to a pervasive workplace problem. However, like so many things related to drug use and abuse, the solution is not that easy.
While the addition of oxycodone, hydrocodone, oxymorphone, and hydromorphone to the DOT panel and, in turn, the 20+ states whose laws align with the Department of Health and Human Services (HHS) or DOT panel, allows employers to test for these highly abused drugs, a little-noticed Medical Review Officer (MRO) procedure complicates matters. The DOT specifically states that the age of the prescription cannot be taken into account in the review of a positive drug test. In fact, when presented with a 10-year-old prescription for OxyContin that is verified as legally prescribed to a donor, the MRO must accept the prescription and reverse the drug test result.
MRO’s retain the right and obligation to report a safety concern to the employer in this case. However, the regulations are silent about the specific obligations of the employer when presented with a safety concern. What’s more, in the above example or in a case where the MRO is presented with a medical marijuana card, the donor cannot perform in a DOT role. However, the employer must still have procedures in place to handle possible Americans with Disabilities Act (ADA) claims. In the world of medical marijuana and prescription drug use, it is more important than ever that companies evaluate their drug testing programs to ensure they align with their risk mitigation strategies, HR best practices, federal regulations, and state laws.
Frank Bernard, Vice President of Compliance at DISA Global Solutions confirms the risk for employers:
“Many of DISA’s clients have both DOT and non-DOT employees and they are just now beginning to realize how critical it is to evaluate their HR policies and procedures for all employees and candidates, not just the DOT covered employees. We are in a substance use and abuse environment that is far more complex than ever before, at a time when it is riskier and costlier than ever before. Employers need to understand that no tolerance policies are not sufficient any longer. Companies cannot just have a blanket policy to terminate employees or not hire based on a positive drug test.”
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. Employers can and should test employees and candidates for illegal prescription drug use and illicit drug abuse. The ADA specifically states:
"…tests for illegal drug use are not medical examinations and are not evidence of discrimination against recovering 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.
Policies need to be regularly reviewed and updated to address an employee’s use of legally prescribed and over-the-counter drugs that may affect his/her ability to perform his/her job duties and/or potentially expose other employees or the public to danger. There are several federal regulations and state laws that prohibit employers from inquiring as to an employee’s status as a prescription drug user. The Rehabilitation Act, the ADA, and many state disability laws prohibit asking disability-related questions. However, such inquiries can legally be made if the questions are both job-related and consistent with business necessity.
The Equal Employment Opportunity Commission issued Enforcement Guidance: Disability-related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), advising that generally:
“…a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "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-related 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 consistent with business necessity. In addition, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity”.
An employer's reasonable belief that an employee's ability to perform essential job functions will be impaired by a medical 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 requiring a medical examination. Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions. Employers must carefully determine which positions should be covered by a Medical Disclosure Policy. While defining a position that requires the operation of heavy equipment is clearly safety sensitive, defining an administrative assistant role as safety sensitive may be more difficult.
Requiring that it is a business necessity to be in a constant state of alertness is acceptable in many job descriptions. For those positions covered by a Medical Disclosure Policy, it is the employee’s responsibility to provide a copy of the job description to any prescribing physician to ensure that the job functions can be safely performed when taking an over-the-counter or prescription. Should the drug be required, the employer should begin the interactive process required by the ADA.
As a best practice, where allowed by state law, all employers should consider random, reasonable suspicion, and post-accident testing. And, in the case of positions covered under the Medical Disclosure Policy, the failure of an employee to provide notice that he/she is taking an impairing drug is a clear violation of policy and subject to disciplinary action.
 Enforcement Guidance: Disability-related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act (ADA).