When drug testing, manufacturers should consider employee use of prescriptions

Coming up on the two-year anniversary of the COVID-19 pandemic, it should not come as a surprise drug use has surged in the U.S. According to a report last month by the American Medical Association, there has been a sharp increase in drug use and overdose deaths during the pandemic. It’s been a stressful time.

Better safe than sorry, as they say, but manufacturers conducting workplace drug testing should be careful when addressing test results combined with employee disclosures of prescription use. A court case in Ohio serves as an example of these risks. In Hartmann v. Graham Packaging, L.P., an applicant applied for a job as a forklift driver. He used prescription opioids for pain relief, along with other medications which he disclosed during his interview. The employer asked him to provide a doctor’s note that the medications would not be a safety concern. The applicant’s doctor provided said note.

The applicant passed pre-employment drug tests, but results were marked “safety-sensitive.” Disclosures showed the applicant also used Adderall in addition to five other medications prescribed for depression and anxiety. The applicant’s doctor stated there was no safety concern, but the employer did not hire the applicant because his medications were considered a “safety hazard.”

The applicant immediately asserted claims under the Americans with Disabilities Act (ADA) and Ohio state law, with the employer arguing the applicant’s opioid regimen rendered him a safety risk. The court rejected the argument, stating it was not clear whether the employer conducted an “individualized inquiry” concerning the applicant’s ability to perform the duties safely, and the case would proceed to trial.

It’s a complex situation, since employees in manufacturing often operate safety-sensitive equipment. Employers are always wise to ensure workplace safety. But manufacturers must be careful when addressing drug tests combined with employee disclosures of prescription use.

Drug tests conducted by manufacturers usually check for amphetamines, cocaine, marijuana, opioids and phencyclidine. While some of these drugs are illegal, others are legal prescriptions. A positive opioid drug test could be the result of prescription meds. Granted, it could also be a sign of heroin.

It’s important for employers to engage in the interactive process and analysis required under the ADA and state laws. That process requires assessment on a case-by-case basis of the employee’s job duties. Manufacturers must ensure they are not making assumptions and avoid “blanket” rules prohibiting employees from using certain medications. The Equal Employment Opportunity Commission frequently sues manufacturers for having such blanket rules.

It’s a good idea for manufacturers to engage in discussion with the applicant while obtaining information from the treating physician. For safety-sensitive jobs, the manufacturer also must conduct a “direct threat analysis” on whether the applicant’s use of the medication could create “a significant risk” to himself or others.

Manufacturers should ensure their human resources employees and managers are trained to engage in these difficult discussions and assessments appropriately.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.