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The Do s and Don t s of Prescription Drug Disclosure

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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:

(2)

The

DO’s

and

DON’Ts

of

Prescription Drug Disclosure

Tommy Eden

Attorney/Trainer

(3)

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."

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Dura Automotive- What went wrong?

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► 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

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► 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

(7)

Workplace Impairing Medication Use

CANNOT be Ignored

(8)

Opioid Painkiller Abuse Rampant

July 1, 2014 CDC Report

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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

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The

DO’s

and

DON’Ts

of

Prescription Drug Disclosure

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DO

include a legally vetted pre-duty impairing

effects prescription medication disclosure safety

policy in your drug testing policy

(12)

DO

make the pre-duty disclosure policy only

applicable to safety sensitive employees

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DO

evaluate and define in a written report what

positions are considered safety sensitive using a

legally vetted definition

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DO direct employees to confidentially report impairing effect prescription medication usage only to a trained drug testing program administrator and not frontline supervisors

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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”

(16)

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

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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

(18)

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

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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

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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

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DON’T

allow your frontline supervisors to make

a disability or medical inquiry of employees

without proper training

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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

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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;

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DON’T skip the ADA reasonable accommodation interactive dialogue step even after you have the physician’s report in hand

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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

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DON’T take unnecessary risk when you conduct

expanded panel drug testing outside of the approved state drug panel without legal and medical guidance

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Following these

DO’s

and

DON’Ts

of Prescription Drug Disclosure

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Will allow you to own this face of

pure accomplishment !

(29)

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

(30)

Wolfe, Inc.

1.800.230.2991

BizRelations@WolfeInc.com

www.WolfeInc.com

References

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