During the past four years, there has been a sharp increase in the number of workers testing positive for opiates. While experts aren’t sure if the hike is tied to increased need for pain medications, more thorough testing or expanded availability of the drugs, they do agree that HR needs to put policies in place to protect their workplaces and their organizations from liability.
More workers and job applicants are testing positive for prescription opiates than in years past — whether that’s pre-employment, post-accident or random tests.
There has been an 18-percent jump in positive tests for opiates by U.S. workers between 2008 and 2009, and a 40-percent jump from 2005 to 2009, according to a major laboratory provider of diagnostic testing, information and services.
Common opiates are prescription medications such as morphine, codeine, oxycodone and hydrocodone or illicit drugs such as opium or heroin.
In 2005, 0.32 percent of the roughly 6 million workers tested by the lab tested positive for opiates. By 2009, that number reached 0.45 percent of the 4.2 million tested. Ddoctors are increasingly prescribing opiates, so it’s no surprise that more workers are testing positive for the drug.
Dr. Sanford Silverman, president-elect of the Florida Society of International Pain Physicians, goes even further, suggesting that many doctors are prescribing such medications unnecessarily.
“There are now ‘pill mills’ for pain management,” says Silverman, an anesthesiologist whose organization runs The Pain Truth, an outreach program that fights the misuse of prescription pain medications. “They dole out pills and it’s a total farce.”
The rise in positive tests, however, also could be attributable to companies soliciting more thorough drug tests recently.
Employers commonly test for five drugs (heroine, cocaine, marijuana, methamphetamines and barbiturates) but an expanded test (called the 10-panel) will also detect opiates such as Percocet or Vicodin as well as indicate if the urine was altered prior to the test.
In 2009, the lab performed 500,000 tests for expanded opiates, compared to fewer than 400,000 in 2005.
Jeff Gordon, an employment attorney at Thorp Reed & Armstrong in Pittsburgh, says “more and more employers, including a lot of my clients, are doing a 10-panel test instead of five-panel test. Given there’s this upswing in this issue, we’re recommending to more and more of our clients to do the full 10.”
Opiate usage may play a part in workplace accidents. Post-accident drug tests are four times more likely to find opiates than pre-employment tests (3.7 percent compared to 0.78 percent.)
Sample says the post-accident numbers “raise suspicion” that opiates may have played a role in the accidents.
“Look at the warning labels on a number of these medications: They carry warnings about using those drugs and driving, using those drugs and operating machinery — so clearly there is potential for impacting safety while one is using these drugs,” says Sample.
But firing someone solely because they fail a drug test can lead to litigation.
Dura Automotive Systems in Lawrenceburg, Tenn., fired seven workers who tested positive for various medications, even though they all had prescriptions. The workers subsequently sued for discrimination and invasion of privacy, according to court documents.
Velma Sue Bates, for example, tested positive for hydrocodone and was fired after 22 years of working at the company.
The complaint was dismissed on Nov. 3, as the U.S. Sixth Circuit Court of Appeals ruled the plaintiffs were not considered disabled under the Americans with Disabilities Act and could not sue under that law.
But just because the court ruled for the employer in that case, doesn’t mean companies should take similar actions, says Celia Joseph, an employment attorney at Fisher & Phillips in Philadelphia. She notes that the case was tried under the ADA as it was written before it was amended in 2008, which expanded the definition of disability and could have convinced the judges to rule differently.
So how can companies guard against illicit drug use while still accommodating workers and job candidates with prescriptions?
Organizations should have policies that ban the use of illegal drugs and require employees with valid prescriptions to disclose their usage, says Gordon.
To comply with the Health Insurance Portability and Accountability Act, companies should not ask employees why they are taking the medications, just require that they disclose what they are taking.
He notes that organizations should pursue this only if they have adopted a written policy that requires employees to disclose such information, says Gordon.
Such a policy may also include a provision about restricting certain safety-sensitive positions only to those who do not take drugs that might create safety issues.
He also says that companies should train supervisors to recognize the signs and symptoms of illicit opiate use by workers — and drug use in general — and have a policy that requires testing upon reasonable suspicion.
Businesses with safety-sensitive work environments — such as manufacturing, construction or transportation — need to be especially careful about prescription opiates, says Gordon.
After a positive test, Gordon says, companies should do an individual assessment to determine whether the person’s drug use presents a dangerous risk to the workforce.
“Engage in this interactive process with the applicant or employee,” says Gordon. “Is this person suffering these side effects that opiate use can trigger? Have a physician actually test this person. … You have to do more than just assume this person is a safety risk.”
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First Published on HRE Online
