Workplace Drug Policies and Prescriptions

Posted December 8, 2016 by Mary McGinley

Employers are no strangers to having to meet the challenges of workers who need to be on prescription medications. Even though our country is facing serious challenges of increasing numbers of patients becoming addicted to opioid medications, the ADA is clear about the need to make reasonable accommodations for workers’ medical conditions.  

Meeting those reasonable accommodations includes making allowances for workers who have been prescribed medication to treat and manage chronic conditions. For those employers who fail to make these allowances for medications that are legally prescribed, they may find themselves facing a liability lawsuit.

In one such case, a Georgia medical center was recently sued by the EEOC for discrimination after it fired a physician for revealing that he was treating chronic neurological and musculoskeletal problems with legally prescribed narcotics. The employee being treated for chronic pain with a prescribed narcotic and included a doctor’s note regarding his treatment. The employee was also subject to regular urine tests and monitoring through the Georgia Board of Pharmacy in order to ensure his treatment plan was being followed.

The employer claimed that the medication that the employee was prescribed made them unable to meet his job requirements and they failed to interact with the worker in order to determine if the employee could function his essential job duties with or without reasonable accommodation based on the provided medical certification.

Companies concerned with providing a safe workplace and testing for legally prescribed drugs that may affect employee performance may be difficult.  According to a recent article at Workforce.com, it is important to consider the following:

Employers may not make a ‘blanket prohibitions – The ADA has determined that it is illegal for any employer to prohibit the on-the-job use of prescription medications. Employers are also required to make inquiries about the implications as well as reasonable accommodations and direct threats on an individualized basis.

Drug testing by employers – Drug testing programs can include legally prescribed drugs. If an employee tests positive for a prescribed drug, the employer cannot have a blanket policy excluding their employment. Instead, the employer may ask the employee if they are taking any prescribed drugs to treat a condition and explain the positive drug test result.

Drug-free workplace policies – Companies that have drug-free workplace policies are allowed to include prescription drugs in their assessments. Employees that are being treated with these substances may be required to disclose the prescription drugs that they take and whether they may adversely affect their ability to perform their job duties.

Certification – When an employee has disclosed that they are taking a prescription drug that may affect their performance on the job, a company should request a medical certification. This certification should include any information regarding the effects of the medication and whether job functions may be performed safely. Having such a certification in hand can help both the worker and employer in determining reasonable accommodation if possible.

An exception to such reasonable accommodation is with regard to medically prescribed marijuana. Although prescribed cannabis is allowed within 25 states, it is still prohibited by federal law. The ADA, which is a federal agency, therefore, treats medical marijuana differently. Employers are not required to make a reasonable accommodation because it is not legal under federal statutes.

Staying compliant with the ADA is important and keeping employees productive even through chronic illness or pain while maintaining a safe work environment can be a challenge. At EinsteinHR, we can assist you in finding the right person for the job, and we can also give you sound advice that is current and compliant with the law. Contact us today at 770-962-1700 to find out more.