After 22 years of work, Sue Bates lost her job when she got a phone call telling her she tested positive for a legally prescribed drug.
How on earth could following a doctor's orders cost a longtime employee a job?
Bates' employer, Dura Automotive Systems, recently changed its drug testing policy over concern that certain legally prescribed medications might cause a safety hazard. The medication Bates took for back pain, a narcotic prescribed by her doctor, now deemed unsafe, cost Bates her job when it showed up on a routine drug test.
Concerns that employees taking certain legally prescribed medications pose a workplace safety hazard may cost many other employees their jobs. An increasing number of employees rely on powerful prescription drugs to combat pain or anxiety. According to Quest Diagnostics, a regular provider of workplace drug tests, employees testing positive for prescription opiates rose by 18 percent from 2008 to 2009, and by more than 40 percent from 2005 to 2009.
At Dura Automotive, court records show that 44 of Dura's 500 employees tested positive for prescription drugs. Dura put these 44 employees on a one-month leave of absence and required them to pass a second test to return to their jobs.
"Given the liability for industrial accidents," says attorney Mark de Bernado, "or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue."
This problem affects white collar offices as well as factory floors like Dura's, where conveyor belts move constantly. In Missouri, a patient sued, alleging a physician tore a hole in his colon during a colonoscopy because of impairment due to taking the painkiller oxycodone. A prominent Texas prosecutor forced into resigning in 2008 blamed impaired judgment on prescription drug use.
Said Dr. Neil Capretto: "I've seen people have their fingers cut off because they or somebody they depended on to operate machinery properly was out of it. We track some people in construction who say so many of their co-workers are using, they sometimes have to change careers because it's too much of a trigger for them to go back to work after rehab."
Employers handling these and similar situations find themselves caught between a rock and hard place. Do managers trust their employees to arrive at work completely able to safely handle all parts of their jobs and not test for drug use? If so and a problem occurs, company managers may face charges of negligence, for which they may share individual liability.
Does the company test for drugs and merely discipline offenders? If so, what happens if the employee uses an illegal or legal prescription drug and then causes physical or emotional harm to a co-worker or customer? By giving these employees a second chance, the company risks liability for the damage that results.
Does the company use a zero-tolerance rule and terminate anyone who tests positive for illegal or even legally prescribed medications that affect the workplace? If so, they may find themselves on the losing end of a wrongful termination lawsuit or, like Dura, potentially lose a good long-term employee who simply took a legal, medically prescribed medication. What if the medication the employee took was needed for injuries sustained on the job? How could any employer then fire the employee?
Clearly, setting rules concerning workplace prescription drug use proves tricky. Although Dura's now legally contested policy states the company considers a prescription drug unsafe if the medication label includes a warning against driving or operating machinery, many physicians say that users can function normally despite those generic warnings.
Further, the Americans with Disabilities Act, amended in September 2008, prohibits asking employees about prescription drugs unless managers have seen workers acting in a way that compromises safety or suggests medication use impacts job performance.
As an exception, managers supervising public safety workers, such as firefighters and police officers, can require employees to self-report the use of prescription medicines if their impaired ability might result in a direct threat. Additionally, employers of bus and truck drivers -- jobs the federal government deems safety sensitive -- must require testing for six categories of drugs including codeine and morphine. This leaves out testing for the synthetic painkillers OxyContin and Vicodin and the anti-anxiety drug Xanax.
Adding to the confusion, the laws on drug testing vary from state to state and are complex. Several prohibit or greatly restrict random drug testing, while others give employers broad discretion.
If you're an employer or employee, what does this mean to you? If you're an employer, you need to develop a drug testing policy that makes sense. If you're an employee, realize that even a medically prescribed drug may compromise your job.
Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears Mondays. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail is lynne@thegrowthcompany.com.
LYNNE CURRY
MANAGEMENT