Safety and OSHA News

Prescribed drugs: What can companies do about this safety hazard?

Prescription

Scenario: One of your employees is taking a legally prescribed medication and works with machinery that has the potential to maim or kill. The label on the medication warns against driving or operating machinery while taking the drug. What do you do?

For more and more companies, the answer is, fire the employee if he/she can’t stay off the medication.

But is a blanket policy fair to employees? What if, under a doctor’s supervision, the medication doesn’t impair the worker?

The issue is in the courts.

Dura Automotive Systems, a manufacturer of car windows, is facing two lawsuits after firing employees who tested positive for prescription drugs, including painkillers such as hydrocodone.

Dura added certain legal drugs to its employee testing because of concerns that employees taking these medications posed safety hazards.

About 500 Dura employees submitted urine samples, and 44 tested positive. They were put on a 30-day leave of absence and had to pass a second test to return to their jobs.

Experts are split on what to do about this issue.

“Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue,” Mark de Bernardo, executive director of the Institute for a Drug-Free Workplace told The New York Times.

On the other hand, Dr. Seddon Savage, a pain specialist at Dartmouth College and president of the American Pain Society, said, “Well-prescribed opioids at a stable dose that are well supervised in most healthy people won’t cause sedation or other cognitive problems.”

Lawyers for the Equal Employment Opportunity Commission, which filed one of the lawsuits against Dura, say an employer must have a reasonable belief an employee is unable to do a job or poses a threat to terminate someone using a prescription drug.

How widespread is this problem? Consider two things:

  1. In the situation involving Dura, 8.8% of employees tested positive.
  2. Drug-testing company Quest Diagnostics recently reported that use of prescription opiates jumped 18% from 2008 to 2009 and 40% from 2005 to 2009.

Given the controversial nature of this subject, you might wonder why some companies are wandering into this potential minefield.

One reason: Many states provide incentives — such as discounts on workers’ compensation premiums — for employers to drug test their employees.

Dura’s drug tests were part of its participation in Tennessee’s Drug-Free Workplace Program, which provided workers’ comp incentives.

Sue Bates, one of the employees who was fired and is suing Dura, said she understands the company’s safety concerns. However, she believed the company should have worked with employees who take prescription drugs rather than fire them.

What can companies do? According to Quest, they should develop thorough and consistent policies that spell out which drugs their workers might be tested for and under what circumstances.

But until some of these lawsuits are heard, it won’t be a surprise if companies take a wait-and-see attitude about testing for legal drugs.

Going back to the original scenario at the beginning of this article, how do you think a company should handle the situation? Or, perhaps your company already is dealing with this. Let us know in the Comments Box below.

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  • Jason

    We tell our workers that if they are ever taking a prescription or OTC drug that they feel affects their ability to perfrom their jobs safely, they can report it and be given non-safety sensitive work if available. Of course many probably don’t fearing we won’t have any work available and they’ll take a hit on their paycheck.

    HIPPA makes this issue very tricky to handle since we are limited on what information we can solicit.

    This is going to be a common problem if/when marijuana is legalized/decriminialized!

  • Paul

    Very clear cut for me. If a worker is on a medication with this type of warning, they MUST report this to their supervisor so he/she can adjust the type work task that will not put the worker in danger. The worker will NEVER be able to operate machinery or equipment under the legal influence of this type of medication…period. This is soooooooooooooo common sense!

    If the medication will be a long term presciption, then all efforts will be to re-assigned the worker to a different position within the department or Municipality with a similar job description. If that is unsuccessful, then re-training to a different job could occur.

  • Allison

    In workers’ comp, if the employee has a written doctor’s release to work while taking the prescribed medication – and if the employer can accommodate the doctor’s written job restrictions, then it should be a non-issue.

    However, if the employee is being medicated for a non-work related condition – in California – it can still be a work related condition if the job can exacerbate the injury/condition by >= 1%, therefore it is imperative that the employer have the employee medically evaluated to determine their ability to work while under treatment/medication or wait for a “full release” to return to work.

    This way the onus is on the doctor, not the employer. My 2-cents . . .

  • http://metsci.com Gene Griffe

    Although our Company is not in the manfacturing arena, we do have to deal with this issue and have very strct federal regulations that our employees are governed by. They are required to report to my office anytime they receive one of the prescriptions for a heavy pain killer or other narcotic. The information they are required to provied includes the duration that they will be on the medication. For prolonged use such as a major back pain and they areplaced on a bi weekly regimment for pain killers, it could be casue to change their duties becasue of the sensititive of thier position.

    If they abuse thier prescription or can not account for thier continued taking of a controlled drug when given a random testing program, that could result in their termination of employment.

    The use of and abuse of prescription medications is all across the business arena and is not confined just to the manfacturing arena.

  • james

    We have this come up all the time do to the fact our team members, work offshore and on oil and gas location.
    When team members notify us or it is fond as part of drug testing program (your MRO should be help you with this), we send them to our company doctor. This way it is a medical provider making the recommendation to remove, limited duties or make recommend to the team members doctor to use other medication. That will allow them to keep working on are locations. Limit duties are only for a very short time (30 to 60) days while they get there medication changed over. If they cannot change their medication and we have a spot open that will work with their medication we will offer them a job transfer.
    We also spend a lot of time reminding then to talk to the doctor before they go on a medication about work issue. We go so far as to tell our team member to have their doctor call our company doctor before they start any new medication to prevent this problem.
    With these step in place we have had to remove very few team members, and also we are going will above ADA requirements.

  • Neil

    Are these outside entities going to share in the company’s liability when they are sued by an injured worker that was maimed by a drug adled co worker?
    I doubt it!

  • Steve

    The legal use of a legally prescribed medication must NEVER be appropriate cause for dismissal.

    In the case of highly sensitive positions such as airline pilots or HAZMAT drivers, every prescription must be reviewed for not only its affect on the ability to perform the job safely, the underlying condition must be evaluated for its impact on being able to safely perform the job.

    For example, taking an over the counter med such as sudafed does not disqualify a pilot from flying. However, the underlying condition (stopped up sinus) is probably a disqualifying condition until resolved.

    Individual factors need to be assessed by a doctor. Someone who has been taking hydrocodone as prescribed for an extended period of time knows exactly how it will affect their ability to do their job. Still, that same person who is taking the hydrocodone for a ruptured disk, should not be working a job that requires heavy lifting.

    Someone who is taking hydrocodone for their first ever kidney stone probably has no idea how it will affect their ability to function, and they also have no idea what warning signs their body gives when that stone is about to be a problem. This individual should be very closely evaluated and monitored until the condition is resolved. It may be that their kidney stone alone is sufficient cause for them to be off work, but it should NEVER be just cause for dismissal.

    A blanket statement that the presence of specific legal medications is grounds for dismissal is at best a bad idea. At worst, it is probably a blatant violation of ADA.

    If I were a one armed veteran taking medication for phantom nerve pain, banning that medication from a workplace means I could never work there, even though I could otherwise safely perform the job. Can ANYONE say that’s a good thing?

  • http://www.jobreadyservices.net Michelle

    I agree with Neil and with Steve. The onus and liability will ALWAYS be with the employer on this issue. The issue is not the medication itself, but how it affects the person’s ability to perform the essential functions of their job safely. Firing someone simply because they take a certain type of medication, without proving that it puts the employee or others at imminent risk, will certainly open the employer up to all kinds of legal ramifications with both ADA and EEOC. Consider a Fit for Duty test by an objective healthcare provider who is also aware of the physical demands of the job and can test the employee’s ability to do it, will be your best bet. But, you’ve got to have a reasonable belief that they pose a threat before testing. Also, having an interactive dialogue with that employee about your concerns and perhaps finding work that is safer for them to do temporarily, while on the medication, is a better alternative. Or, if they are on the medication for long-term, then determining whether work exists for them to do that is safe for them or if not, THEN as a last resort, termination may be the answer, if all other avenues are exhausted.

  • Barbara

    In our situation anyone who is taking a prescribed medication that has the warning of do not operate or drive machinery while taking this medication has the responsibility to report to the Safety Director. We then determine if they are in a job position that this could affect. If so then we move the employee into a position that would be safe for at least 1 week for that employee to give time to determine if the medication adversly effects the employee. We have a work together program to help this employee keep working productively and to protect their and their coworkers safety. By having this honest and open approach and working as a team to keep each other in the workplace safe we have had a great response from our employees. No one should ever be terminated or made to feel that their work status is in jeopardy because they have been prescribed a medication by a doctor for a medical condition. It could be as simple a tooth extraction up to a very serious health condition. If the medication proves to adversly effect the employee then we take the responsibility to keep that employee working in a area that will be both safe for them and the people working around them. If a company tries hard enough every restriction- even medication complications can be met in the workplace and I guarantee you will have a stronger and more dedicated workforce if you work with your employees instead of turning your back to the situation by terminating. Why train a new employee when you have a good employee right there who just needs a short term accomodation. Take a care of your employees and you will benifit as a company in the long view of the situation.

  • http://www.munrossafety.com Munros Safety Apparel

    While on prescription meds that may affect their ability to work, they should be given a different position, and returned after they have finished their prescription. Long term meds present a whole new ballgame. Limiting their duties is a good idea to ensure safety.

  • Jan

    We are a mfg and also struggle with the prescription drug issues. Once an employee provides a legal prescription to the MRO they return a negative result. Due to HIPPA they will not release what drug the employee is taking. How can we determine there is legal drug abuse before an accident occurs? Employee tend to protect each other and most will not go to a supervisor to stata something is not right with John

  • james

    Jan,

    First make sure your MRO is you company doctor the does you’re fit for duty and new hire exams. If get this done then it is easier to ask the MRO to look at the safety issue of the medication. A good MRO will give the Neg. test but will also let you know if it is safe for the employee to work with equipment while on these medications, or at the less tell you need to have fit for duty exam done.
    Another way around hippa is to require reporting of medication that warren agents using equipment while taking it. We also have a release already signed are part of our hiring packet and it is up date yearly.
    See below from 11-2-10
    We have this come up all the time do to the fact our team members, work offshore and on oil and gas location.
    When team members notify us or it is fond as part of drug testing program (your MRO should be help you with this), we send them to our company doctor. This way it is a medical provider making the recommendation to remove, limited duties or make recommend to the team members doctor to use other medication. That will allow them to keep working on are locations. Limit duties are only for a very short time (30 to 60) days while they get there medication changed over. If they cannot change their medication and we have a spot open that will work with their medication we will offer them a job transfer.
    We also spend a lot of time reminding then to talk to the doctor before they go on a medication about work issue. We go so far as to tell our team member to have their doctor call our company doctor before they start any new medication to prevent this problem.
    With these step in place we have had to remove very few team members, and also we are going will above ADA requirements.

  • Elliot

    A lot of the answers are great for large companies that can afford to put a doctor or nurse on payroll, or the luxury of moving employees all around to less restricted jobs. Our manuf. co. is about 30 employees. Our rules are that all non-OTC prescriptions must be reported. We random drug test. We fire after one warning on non-prescribed positive drug test. They must list their prescribed drugs before the test, which are then exempted. This puts in place a strong need to report drug prescriptions and against abuse. If we get a report of a questionable drug, we tell the employee to ask his doctor specifically for a release to work around heavy machinery. If we can accommodate the employees we do, but we don’t create new positions either. The doctors don’t want any additional liability, and won’t clear the employees until they are off the drug. They don’t work until the doctor clears them, so they blame the doctor or get off the medication ASAP. In seven years of this policy, I’ve had only one case of continuously prescribing a medication. This was a no-brainer to effectively fire the employee. He had two trips to the the ER in one week for stiches. His doctor wouldn’t release him and he was obviously unsafe. We didn’t have other suitable work available. All the others went into rehab and then tested clear, or had temporary assignments that we could accommodate. This could be a huge problem, affecting over half of all employees over time, but prudent policies and working with professionals makes this fairly easy to administer.

  • Jan

    Thanks for your replys but we are really large and I have 52 locations accross the US. Here at Corporate we have 700 employees. We use Quest and their MRO is quite strict. Sometimes I can get the clinics to tell me stuff on the side but I have clinics all over the place, some out in corn field. In many states the life styles are so different it is very hard to control. I have many employees in the on customer sites as we are in the oil industry also. Those employees are subject to the customers tests so they are ok. It is the shop to shop employees I am concerned about. I can not be in all the states at once and can only act when the location managers tell me things. I am sure some hold out until i have an injury

  • james

    Jan
    We had the same problems in hte oil feild, but with that said I fond one MRO that would do the whole company, along with one lab that dose our drug testing work, the labs send change of custody form to the authorized clinic with our information on it and the clinic’s location code. Then all samples are sent to the lab by fedex. All test results that are neg can be looked up by authorized manager /HR teams to keep the new hire or team member work. all ?pos are sent to the one MRO by e-mail. He then dose his thing and also cover use with neg that should not be working. Pos are then e-mail or called in to the Hr team for action. It was a pain getting going but in the long run it has give HR more control and save a lot of money for us. For now we are volume buying drug test from a lab.

  • Luke

    I am actually taking a pain killer for an accident I was in a couple of years ago. No bone injury, just chronic lower back pain and arthritis. The medication helped keep my pain levels to a minimum where I could tolerate a lot of simple things that had suddenly become difficult. I agree totally with what everyone has said. My situation is that I am being hired in as a Safety Technician and after passing my physical, the doctor wanted a work release saying I could work while taking these medications. My doctor is afraid to write anything so therefore I cannot go to work. I wish I would have known I would be in this situation and I would have tried a route other than medication. The shame is that I’ve been allowed to work in other fields such as electrical and boilermaker work, I finally get a position where I don’t touch anything and I can’t go to work! I don’t know, I hate being in the category of relying on medication so my goal is to get off, I just wish I didn’t have to pass up this job opportunity in the process. I need to go to work. 1 more thing, I think it’s also a shame that a doctor that’s medicated and has taken my money for the last 4 years should atleast back me up a little bit and just be honest in letting them know the work I have performed and his opinion on me instead of turning his back on me when my I need him. This is a very confusing situation an it seems like the doctors are quessing as they go. Thanks for listening y’all.

  • grass roots safety man

    Very good and healthy discussion for Safety teams. (Luke, hang in there.) I have been on meds for many years due to K-Stones and arthritic hands. I am on a path to chem-free treatments (natural therapies) to rely less on pain reduction and more on pain prevention and… freedom from the meds. The companies and testing labs should work together (why don’t they suggest a path of med-free therapies for those testing positive)? Perhaps the employee should be less prone to fill that first prescription and learn of other therapies that may prevent the ‘side-effects’ of drowsiness, non-alertness, etc.