The Do’s and Don’t’s of Prescription
Drug Disclosure
Guest Speaker:
Tommy Eden, III
Management and Labor Attorney
Charlton Owensby. M.D., J.D., MBA
Medical Review Officer for Wolfe, Inc.
Moderator:
The
DO’s
and
DON’Ts
of
Prescription Drug Disclosure
Tommy Eden
Attorney/Trainer
Legal Disclaimer
► This presentation is for
educational purposes only and is not intended as a substitute for the legal advice of an attorney knowledgeable of the issues
covered as they relate to a user’s individual circumstances. The presenter makes no assurances regarding the accuracy or
completeness of the following information. Legislative,
regulatory, case law and medical developments regularly impact on general legal research and
medical information.
"No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."
Dura Automotive- What went wrong?
► Blanket drug test of 400 employees;
► safety sensitive glass manufacturing positions not
clearly defined;
► 12 panel rapid screen urine drug test covering
illegal and prescription medications;
► MRO reviewed non-negative test and pronounced
those with prescriptions had passed the test;
► However, Dura directed employees to bring
prescription bottles to determine driving or operating machinery warnings;
Constangy, Brooks & Smith, LLP © 2014
► Dura directed employees taking impairing effect
prescription medication to cease or be fired;
► Dura retested and those positive for lawful impairing effect
prescriptions were fired;
► In 2008 the 6 employees filed an ADA suit claiming
improper medical testing and medical inquires by Dura;
► ADA Jury Verdict awarded to 6 employees $870,000
against Dura, which it appealed;
► EEOC filed ADA lawsuit against Dura settled in 2012 for
$750,000 with extensive consent decree;
► August 2014 6th Circuit Court of Appeals revisited jury
verdict instructions and remanded to trial court;
Constangy, Brooks & Smith, LLP © 2014
Workplace Impairing Medication Use
CANNOT be Ignored
Opioid Painkiller Abuse Rampant
► July 1, 2014 CDC Report
►
ACOEM Practice Guidelines:
Opioids and Safety-Sensitive Work
► JOEM Volume 56, Number 7, July 2014
► Copyright 2014 by American College of Occupational
and Environmental Medicine
New American College of Occupational and Environmental Medicine guidelines state, “Acute or chronic opioid use is not recommended for patients who perform safety-sensitive jobs. These jobs include operating motor vehicles, other modes of transportation, forklift driving, overhead crane operation,
heavy equipment operation, sharps work (eg, knives, box cutters, needles), work with injury risks (eg, heights) and tasks involving high levels of cognitive function and
judgment. Medications… Conclusion: Quality evidence consistently demonstrates increased risk of vehicle
The
DO’s
and
DON’Ts
of
Prescription Drug Disclosure
DO
include a legally vetted pre-duty impairing
effects prescription medication disclosure safety
policy in your drug testing policy
DO
make the pre-duty disclosure policy only
applicable to safety sensitive employees
DO
evaluate and define in a written report what
positions are considered safety sensitive using a
legally vetted definition
DO direct employees to confidentially report impairing effect prescription medication usage only to a trained drug testing program administrator and not frontline supervisors
DO update your job descriptions to include as an essential safety function “the ability to work in a constant state of alertness and safe manner”
DO
direct employees to their treating physician in
the first instance to make an individualized
assessment of the employee's clearance to safely
perform their duties while taking the impairing
effect medication
DO provide the reporting employee written directions and a clearance form for their own treating physician to make a confidential report-with an updated copy of
DO retain your own consulting MRO/occupational physician to guide you through the disclosure and evaluation process and interface with the treating
physician, and support expanded panel program setup
DO conduct two hours of ADA supervisory disability discrimination training on: (1) what constitutes an ADA disability related inquiry; (2) what constitutes an ADA medical examination; and (3) the proper steps to make a prescription medication inquiry
DON’T require the employee to initially report under your safety policy the name of the prescription
medication, or the reason for the prescription, only that they are taking an impairing effect medication or
substance
DON’T
allow your frontline supervisors to make
a disability or medical inquiry of employees
without proper training
DON’T condition an employee's continued employment upon the employee’s discontinuing use of a legally prescribed
medication - unless, after an individualized medical assessment, a physician concludes in a written report that discontinuance is job-related and consistent with business necessity
OSHA General Duty Rule Section 5.
Each Employer: (1) shall furnish to each of his
employees employment and a place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm to his employees;
DON’T skip the ADA reasonable accommodation interactive dialogue step even after you have the physician’s report in hand
DON’T disclose results, or conduct drug rapid screens, in the presence of peers where it may disclose the use of prescription medications and/or a disability
DON’T take unnecessary risk when you conduct
expanded panel drug testing outside of the approved state drug panel without legal and medical guidance
Following these
DO’s
and
DON’Ts
of Prescription Drug Disclosure
Will allow you to own this face of
pure accomplishment !
How to Contact Trainer:
Tommy Eden Attorney at Law
Constangy, Brooks and Smith, LLP 3120-D Frederick Rd. Opelika, AL 36801 West Point, GA (205) 222-8030 (mobile) teden@constangy.com www.alabamaatwork.com #tommyeden3