November 2nd, 2017 | Debbie Lamb, Sterling Talent Solutions
HR In the Stoned Age: Prescription Pills in the Workplace
The prescription pills and opioid crisis has become a growing concern throughout the country. Every community from rural to urban is affected by the increase of opioid usage in the United States. It is a stunning fact: over two million Americans are estimated to have a problem with opioids. The non-medical use of prescription psychotherapeutic drugs –and of pain relievers in particular –is now second only to marijuana use among the nation’s most prevalent drugs of choice. The National Institute on Drug Abuse (NIDA) reported in 2014 that the number of prescriptions for opioids, such as hydrocodone and oxycodone products, have escalated from around 76 million in 1991 to nearly 207 million in 2013. NIDA also found that 80% of current opioid users reported that their first opioid was a prescription pain reliever. The transition from misusing prescription opioids to using heroin and synthetic drugs may be part of the natural progression of disease in a subset of users.
Sterling explored how prescription drug misuse and abuse is impacting employers and what should be considered in a drug screening program in our recent webinar, “HR in the Stoned Age: Prescription Pills in the Workplace.” Nina French, Partner and Principal Consultant of Current Consulting Group, LLC explains how drug abuse and misuse by employees impacts organizations financially and what components should be considered for a drug testing policy to curb use and protect the workplace.
How Drug Abuse and Misuse by Employees Impacts Organizations Financially
In an earlier webinar, “HR in the Stoned Age: Marijuana and the Law”, Sterling discussed marijuana in the workplace. The legalization of recreational and medicinal marijuana use in 29 states across the country has had a profound effect on a company’s bottom line. The biggest impact from marijuana legalization is the cost to employers, post-legalization. 85% of surveyed employers were equally concerned about the costs of legalized marijuana and with good reason. Over the next five years, small businesses across America will pay out an approximate $26.4 trillion dollars in litigation. Marijuana usage has a $179.3 billion impact on productivity by inconsistent work quality, needless risk-taking, increased absenteeism, poor concentration and lack of focus or carelessness or errors in judgment.
Considerations for a Drug Testing Policy
Employee drug testing is a single data point in the assessment of an employee or candidate and an integral part of candidate and employee assessment. Testing increases the stability in worker productivity, decreases absenteeism, reduces employee turnover and can help a company avoid liability for negligent hiring penalties. Below are considerations for creating a prescription drug testing policy:
- Have a Clearly Written Policy – In the policy state the prohibited behaviors, explain the company drug testing policy including how it is done, when and how often, explain the consequences of policy violations and take measures based on actions rather than drug test results.
- Employee Education – Train employers of the company’s drug policy and procedures. Employees should know the consequences of use, refusal to take the drug test and what a positive drug test reflects on their hiring.
- Supervisor Training – Supervisors should be trained on the workplace policy for illicit and prescription drug use and any procedures that pertain to the drug policy. Managers should know the signs and symptoms of prescription drug misuse.
- Employee Assistance Program – Provide the employee with the job description and a standard form for the employee’s treating physician to assess the ability of the employee to perform the essential job duties while taking the prescribed medication that confirms the ability or inability of the employee to perform the essential job functions.
- Drug Testing – Use contracted Medical Review Officer (MRO) or OCC Med physicians as employers’ consultant for each case. Determine and document the methodology and appropriate drug test panel for the reasons for test and the positions.
Questions About Prescription Pills Use in the Workplace
Webinar attendees asked a variety of questions from general drug testing questions to specific to industry specific information:
How would you recommend to zero in on Fentanyl? Typical urine drug screens do not catch (even in a 24hr period) and hair should catch habitual use. But we are in the medical field and abuse can occur with drugs pulled from the OR stock. Are the panels with labs (such as Quest & LabCorp) up-to-date with this new drug of choice?
Fentanyl can be tested in most urine testing panels. It must be added to your policy and panel with the laboratory and Sterling. In addition, if you have medical professionals, developing a prescription disclosure program would be best practice in requiring medical professionals to notify the employer when a drug that may impair safety is prescribed.
Can you test for synthetic drugs?
Yes, many synthetic drugs can be tested for including Synthetic marijuana.
It is my understanding that in some states you cannot withdraw an offer of employment for someone that is legally taking marijuana. However, you can terminate them if they are under the influence at work. Is this correct?
State laws vary, but there was a recent case in Massachusetts where the employer was ruled against for discrimination for a medical card only. However, other states have rulings that you can terminate for medical marijuana use. It is important that you review the rules in your states. The definition of under the influence needs to be properly defined as no drug test for marijuana equates to “under the influence.” It is important that you review the requirements in your state and write a policy that meets the legal requirements and your intent.
Do you anticipate any policy changes re: opioid use this year?
At present, there are no policy changes for opioid use outside of the HHS changes and the proposed changes in the NPRM for the DOT.
Are we legally able to restrict employees from working while on a drug that causes impairment when they have a prescription?
Yes, you need to develop a drug disclosure policy and put that in place for those positions that are defined in their job descriptions in legal terminology as safety sensitive.
I wonder if we do drug testing do we have to subject all employees or can we only administer for certain specific jobs?
Yes, drug testing can be performed for some or all employees and candidates as long as the practice has a non-discriminatory basis.
How to Create and Implement a Drug-free Workplace Program
Companies should have their drug testing policies reviewed and updated for 2018. The policy must be clear in its description of prohibited behaviors, drug testing (how, when and for what), consequences for policy violations, the definition of “under the influence” and be ready to take measures based on actions rather than drug test results. It makes sense to ensure that a company’s drug testing policies protect the organization needs and are following federal regulations. Companies who promote a drug-free environment will need to review their policy with legal counsel, consistently apply drug testing policies across all candidates and employees and consider the health and safety of all workers in the application of the predetermined drug screening policy.
For more information about how legalized the medical and personal use of marijuana can impact employers, listen to the OnDemand version of the webinar, “HR in the Stoned Age: Prescription Pills in the Workplace.”
Please note: Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.