RECENT COURT DECISIONS How would your workplace react if an employee applying to be an iron-worker, nurse, or forklift driver presents a valid prescription for Vicodin or medical marijuana, or is a recovering addict on methadone? In today’s hiring environment, such questions need to be evaluated on an individual basis. Employers should avoid overly broad application of safety-sensitive designations, particularly without knowing the candidate’s potential level of impairment or the accommodation required for the candidate to perform work functions. Employers have been on the winning and losing sides of recent court decisions concerning these kinds of employment situations. In the 2010 case Equal Employment Opportunity Commission (EEOC) v. Hussey Copper Ltd., the court held that the employer failed to make an adequate individualized assessment and failed to establish that the individual posed a “direct threat” to others due to his methadone use. Three years later, in EEOC v. U.S. Steel Corp., a different court ruled in favor of an employer’s right to randomly test probationary employees for alcohol while working at a safety-sensitive facility. (For more information about these decisions, see the articles “Required Individualized Assessment under ADA Must Be Adequate” on the Jackson Lewis website and “EEOC v. U.S. Steel Gives New Hope to Employers” from Law360). The way an employer approaches its determination can be critical if that decision is questioned by an outside agency like the EEOC. MRO EVALUATIONS AND VALID PRESCRIPTIONS An article in the May 2011 issue of Professional Safety described some of the challenges employers face when trying to balance their social responsibility to provide safe working environments for employees and customers against the risk of an employment lawsuit. A particularly problematic scenario is when an MRO approves an employee who has tested above impairment levels as a legal positive because the employee shows a valid prescription. Sarah Trotto, writing last year in Safety+Health magazine, recommended that employers include a written explanation of the safety-sensitive justification as part of their position assessment supplied to the MRO. The issuing physician would sign a fit-for-duty release to ensure an employee using the prescription would maintain cognitive function to safely perform work without injury to themselves or others. In practice, issuing physicians tend to be reluctant to sign releases for potentially impaired workers. In addition, some laboratories have switched analysis from quantitative to the less expensive qualitative screening without informing their employer clients. The qualitative tests cannot be used to demonstrate that impairment contributed to an incident—a critical element in workers’ compensation lawsuits. GAPS IN TESTING The marketing of products and techniques intended for drug users to adulterate tests continues to grow. A 2008 paper published in Forensic Science Internationa​l identified specimen substitution and adulteration as major problems for management, laboratories, and MROs. The availability of additives an​d adulteration products underscores the importance of an employer’s efforts to innovate their ADP programs. Synthetic marijuana (also known as Spice, K2, and fake weed) has five active chemicals the Drug Enforcement Agency (DEA) lists as Schedule I controlled substances. But manufacturers have found a way to evade legal restriction by substituting alternate chemical combinations, according to the National Institute on Drug Abuse. A 2014 article in Time described how, as the DEA updates its list of banned cannabinoids, manufacturers are innovating new compounds. This cat-and-mouse scenario creates a difficult challenge for employers. The Department of Transportation (DOT) has recognized the deluge of adulterants available to drug users. DOT’s definition of a safety-sensitive function is broader than the ADA’s and covers all time from when drivers are required to be in readiness to work until they are relieved of all work responsibility. DOT also has mandatory testing guidelines. One way to counter urinalysis loopholes is through “point-of-collection” testing, which can prevent some adulteration methods from succeeding. The Federal Motor Carrier Safety Administration’s (FMCSA) controversial “direct observation” sample collection practices require a same-gender observer to “watch the urine go from the employee’s body into the collection container.” In 2008, FMCSA revised the procedure and required direct observation for all employees who fail or refuse to take a drug test as a condition of employment for safety-sensitive duties. The regulation confronts common adulteration practices by requiring employees to first raise their shirts above the waist, move their lower clothing to expose their genitals, and allow observers to verify the absence of cheating devices. This ruling was upheld as constitutional by the United States Court of Appeals for the District of Columbia in 2009. As part of its defense, DOT provided evidence of the increasing availability of products designed to defeat drug tests and a Government Accountability Office report indicating drug testing protocols were inadequate to prevent cheating. Despite an increase in hair follicle testing, studies show urinary analysis by laboratories continues to be the most common drug test used by construction employers, as reported in Construction Management and Economics. However, a study in the Journal of Health Care Compliance suggests that testing laboratories may be headed for changes resulting from negative attention following confirmed cases of overbilling, consequences from false-positives/negatives, and the expanded use of “designer drugs” (synthetics) specifically formulated to go undetected by many tests. If existing programs are not revised, impaired employees who would otherwise have been identified and removed from service might pass traditional drug tests. FORWARD PATH Given the trends toward legalizing marijuana and increasing acceptance of drug use among the public, employers would be well served to ensure their ADP programs are sufficient to protect the health and safety of employees—and to withstand scrutiny from courts and governmental agencies. Employers should also carefully consider how they will respond to employees with valid prescriptions who apply for safety-sensitive positions. ERIC NELSON, CSP, is senior partner with Steel City Safety, a consulting company in New Stanton, Penn., and an instructor in the Department of Safety Sciences at Indiana University of Pennsylvania. He can be reached at e.r.nelson
@iup.edu or (724) 357-3800.


 

JEREMY SLAGLEY, CIH, CSP, retired from 20 years’ active duty as ​an Air Force Bioenvironmental Engineer and is an assistant professor in the Department of Safety Sciences at Indiana University of Pennsylvania. He can be reached at jeremy.slagley@iup.edu or (724) 357-3270.