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Opioid crisis draws concern over drug-free workplace policies

SHERRY KARABIN
Legal News Reporter

Published: October 20, 2017

As the number of opioid-related deaths continues to rise in Ohio, some attorneys are advising employers to update their drug-free workplace policies to ensure they achieve their intended function and comply with all relevant state and federal laws.

Brouse McDowell shareholder Christopher Carney, who chairs the Labor & Employment Practice Group, said many drug-free workplace policies do not effectively address the use/misuse of prescription opioid drugs.

“For example, the language in most policies pertains to illegal substances like heroin or cocaine,” said Carney. “The other issue is that the tests are not designed to screen for prescription drugs like Percocet or oxycodone.

“Standard tests screen for five substances—opiates/heroin, cocaine, marijuana, PCP and amphetamines,” said Carney. “The standard screening test does not address synthetic opioids, such as fentanyl, which are much more powerful than heroin.”

According to a press release from the Ohio Department of Health, there were 4,050 overdose deaths in the state in 2016, up from 3,050 the previous year. The data also shows that fentanyl and related drugs were factors in 58.2 percent of the deaths in 2016.

The ODH notes the emergence of more deadly fentanyl-related drugs like carfentanil, which was involved in 340 overdose deaths, adding that cocaine is now being used with fentanyl and other opiates. There is some positive news, however, with the ODH reporting the lowest number of prescription opioid overdose deaths since 2009.

Carney said he’s advising his clients to revise their policies to address the use of synthetic (fentanyl) and semi-synthetic opioids such as oxycodone and hydrocodone as well as to ensure that the laboratories performing the testing can screen for such substances.

“While there are currently no universal standards by which we can determine whether a person on prescription pain killers is impaired, testing for the substances will provide important data for employers that could become relevant down the road.”

Carney is also recommending that businesses train their supervisors to recognize the signs of prescription drug abuse or overuse.

The Ohio Bureau of Workers’ Compensation has unveiled its own opioid prescribing rule, which applies to all BWC-certified prescribers. As part of the guidance, prescribers are advised to pay attention to the duration of time an injured worker is on opiates and to set up dose and duration checkpoints in which pain treatment plans are reviewed.

The Ohio BWC encourages companies to implement drug-free workplace policies by providing discounts on workers’ compensation premiums, said Carney. These policies require, among other things, employee education, supervisor training, rigorous drug and alcohol testing, and employee assistance for workers that voluntarily come forward.

Carney said in instances where workers are operating machinery or other equipment, an employer may ask them to list the prescription drugs that they are taking which could impair their abilities to do their jobs.

“However, this method is justified only when the safety of an employee or those around him/her may be at risk,” said Carney. “If an employee does not list the prescription drugs they are taking and is involved in an accident, this could be grounds for termination or some other adverse employment action.”

Carney said generally speaking businesses require drug tests as part of the pre-employment screening process. There are also three types of post-employment testing--random, reasonable suspicion and post-accident.

On Jan. 1, the amendments to the OSHA (Occupational Safety and Health Administration) recordkeeping standard went into effect, including 29 CFR 1904.35(b)(1)(iv), which codifies OSHA’s longstanding position prohibiting retaliating against employees for reporting work-related injuries or illness.

“The change is designed to encourage employees to report injuries and illnesses by removing fears of retaliation by the employer,” said Carney.

However, he said OSHA’s interpretative guidance on this amendment provides that blanket post-accident testing policies will likely violate the standard.

According to Carney, Section 1904.35(b)(1)(iv) does not prohibit testing employees who report work-related injuries or illnesses, but it does require businesses to have “an objectively reasonable basis for testing.”

The interpretive guidance also provides examples of when testing is and is not appropriate.

For example, he said it is appropriate to drug test an employee injured after driving a forklift into a wall because it is objectively reasonable for the employer to conclude the worker may have been impaired.

On the other hand, said Carney, it is unreasonable to require an employee that reports a back strain to be drug tested since it is objectively unreasonable for the employer to conclude the worker suffered a back strain because the person had drugs in his/her system.

Fisher Phillips associate Mathew Parker said another important consideration for employers to keep in mind when dealing with prescription drugs is that an employee’s use of the medication could be related to a condition that qualifies as a disability under the Americans with Disabilities Act.

“The ADA won’t protect an employee who is currently engaged in the use of illegal drugs,” said Parker, who works out of the Columbus office. “But it will generally protect an employee from disability-related inquiries and questions about the lawful use of prescription drugs where there is no indication that the side effects of the drugs directly affect their job function.”

He said he suggests businesses employ an approach that helps educate employees and supervisors about the dangers and signs of drug abuse, while creating an environment in which workers feel “safe” to come forward and seek help.

“Every drug-free workplace policy must spell out that drugs in the workplace are not tolerated, while specifically detailing the consequences,” said Parker. “Training is essential for supervisors and employees so that they can recognize the warning signs and learn what resources are available should anyone need help.”

Employee assistance programs could include things like ongoing educational presentations and seminars, he said.

Parker said he has noticed some employers shift away from zero-tolerance policies to those that provide “second chances” to employees that agree to address their drug or alcohol problems.

“In such cases, for instance, if an employee is tested and the test comes back positive he/she may receive another chance contingent on the completion of a treatment program,” said Parker.

“In some cases, these agreements are born out of necessity,” he said. “I have one client who found it difficult to keep the workforce intact when employing a zero-tolerance policy.”


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