Lexington, KY - Whether it is a legal, but frequently abused, drug like Oxycodone or an illegal substance like marijuana, drug use is on the rise in the American workplace. According to a national survey by the Substance Abuse and Mental Health Services Admin-istration (SAMHSA) in 2007, of the 17.4 million illicit drug users age 18 and over in America, 13.1 million, or 75.3 percent, were employed.
This disturbing trend is particularly apparent in relation to opiates. In 2008 and 2009, the results of more than 5.5 million drug tests showed an 18 percent increase in opiate positives in a single year and a more than 40 percent jump between 2005 and 2009, according to an annual drug testing index released by the clinical lab services company Quest Diagnostics Inc. Another report by the Drug Abuse Warning Network, part of the U.S. Department of Health and Human Services, shows a 111 percent increase in the number of emergency room visits for non-medical use of opiates like Oxycodone or Hydrocodone. Since these opiates can have side effects, in addition to a euphoric high, the negative effect on productivity is clear. As a result, workplace safety concerns and lawsuits relating to America's drug problem are on the rise.
Avoiding legal problems
Employers must recognize the trend of increasing drug use and take appropriate steps to ensure worker and public safety. In 2009, post-accident drug tests indicated opiate use more than four times as often as pre-employment drug testing. To maintain a healthy and safe work environment, despite rising drug abuse, OSHA recommends the following five actions: a drug policy, supervisor training, employee education, employee assistance, and drug testing.
In particular, drug testing before and during employment disincentivizes drug abusers from obtaining or retaining a job with your company. Some important steps, however, should be taken in order to effectuate a drug-testing policy.
First, the employer should discuss with the testing laboratory what kinds of drugs should be screened. Not all drug-screening methods detect some commonly abused prescription drugs, and therefore an employer should verify what screening test will be used. Second, a clear policy should be put in place that provides reasonable and adequate notice to all employees of what drugs are subject to testing before and during employment.
Unfortunately, small businesses are the most likely to feel the effects of drug abuse. In 2007, about nine in 10 employed illicit drug users worked for small businesses, according to a SAMHSA report. These companies are generally less likely to test for substance abuse - and the abusers know that. Small businesses also may have trouble enacting a drug-free workplace policy due to the cost and organization required.
To assist small businesses, OSHA has developed a variety of helpful tools that will aid in creating a drug-free, safe working environment; these materials are available at www.osha.gov.
Legal implications
Two types of lawsuits should concern employers if one of their employees has a drug problem. The first type is a negligent hiring/negligent retention suit. These suits are predicated on an employer's decision to hire/retain an employee when they knew or could have determined through reasonable investigation that the employee is dangerous. As noted, drug abuse creates dangerous conditions in the workplace. Inadequate investigation into an employee's history with drugs prior to hiring or continued retention after a drug problem becomes apparent may result in a suit if another employee or customer is injured as a result.
The second type of lawsuit involves the Americans with Disabilities Act (ADA), which is specifically inapplicable to the illegal misuse of prescription drugs. Recent suits under the ADA have arisen when an employee is discharged because they failed a drug test, but they had a legal prescription for the drug they were taking. For example, in a Tennessee case, an employer determined that it was dangerous for its employees to take 12 substances while at work. Drug tests were conducted, and six employees tested positive for one of the 12 prohibited drugs. Even though the plaintiffs each had a prescription, the employer requested that they change their medication; when they refused, they were terminated.
The Sixth Circuit concluded that the plaintiffs were not "qualified individuals with a disability" under Section 12112(b)(6), and therefore their suit was barred. On reconsideration, the district court stated that although these individuals could not sue under Section (b)(6), they could still go to trial on their claims under Section 12112(d)(4)(A), which prevents an employer from requiring a "medical examination." Following a five-day trial, the jury returned a verdict in favor of the plaintiffs. Although several plaintiffs received only nominal damages, others received substantial punitive and compensatory damage awards. Since an ADA claim is possible in this situation, an employer, particularly in an office environment where safety issues are fewer, should consider retaining employees that legally take prescription opiates.
Employer options
In general, an employer's options are not limited when confronted with drug use by an employee. For example, an employer can provide an employee with time off to take care of their addiction or the employee can be terminated. The company policy should be reviewed to see if it provides any procedures that must be followed. If the policy is well drafted, it should do so.
Mauritia G. Kamer is an attorney in the Lexington office of Stites & Harbison, PLLC, with a practice focused on employment law. She can be reached at mkamer@stites.com.