Prescription drug addiction: Medical review officers can help eliminate disability discrimination claim

published in McAfee & Taft EmployerLINC | September 5, 2014

By Courtney Bru

Oklahoma consistently ranks at or near the top of all states when it comes to prescription drug abuse. The prescription rate for opioids (i.e., painkillers) in Oklahoma is among the highest in the nation, and the state also ranks high in terms of deaths by prescription drug overdose. Just last month the Centers for Disease Control and Prevention announced it will provide Oklahoma more than $1 million over the next three years to combat prescription drug abuse. It can be hard to spot those struggling with prescription drug addiction. These issues are increasingly prevalent and affect all kinds of people – including your employees.

Prescription drugs and disability claims

There are a variety of ways to confront prescription drug abuse in the workplace. For starters, all employers should have a written policy that specifically addresses the use or misuse of prescription drugs at work. Employers may also require applicants and employees to undergo drug testing. Drug tests may reveal an employee is using prescription drugs, which may reveal or provide information about whether that employee is potentially “disabled” under the federal Americans with Disabilities Act. If an employee tests “positive,” an employer having 15 or more employees must comply with the ADA.

The ADA prohibits discrimination on the basis of disability and sets strict rules about when employers may conduct medical exams or inquiries. The ADA allows for drug testing to determine “the illegal use of drugs” by applicants or employees, and allows employers to make employment decisions based on test results. A “test to determine the illegal use of drugs” is not a medical examination for purposes of the ADA. But “illegal use of drugs” does not include the “use of a drug taken under the supervision of a licensed health care professional,” i.e., prescription drugs.

Former employees and the U.S. Equal Employment Opportunity Commission have argued that employers use drug test results to discriminate against those with disabilities. In many of these cases, the employer directly confronted the employee with test results and requested information about health conditions or prescription drug use.

EEOC enforcement guidance does provide that if an individual tests positive for an illegal drug, “the employer may validate the test result by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.” According to the EEOC, an employer may ask “What medications have you taken that might have resulted in this positive test result?” or “Are you taking this medication under a lawful prescription?” But keep in mind that by engaging in this dialogue directly with an employee, an employer may learn an individual takes prescription drugs. The individual may also feel compelled to disclose health conditions during this conversation. The employer has now learned health information, and the individual may claim discrimination on the basis of a disability.

Use your medical review officer

Employers can gain some level of protection by eliminating their knowledge of this type of information. The easiest way to do this is by relying on your medical review officer.

Under federal Department of Transportation regulations, individuals tested should not disclose prescription drug use at the time of specimen collection. Instead, an individual that tests “positive” is to be contacted by a medical review officer to determine whether there is a legitimate medical reason for the result, such as the lawful use of a prescribed medication. The review officer is authorized to take all reasonable and necessary steps to verify the authenticity of any prescription, and may also contact the individual’s physician for information. The review officer generally discloses only a positive or negative result to the employer, who would then have no knowledge regarding prescription drug use.

By contrast, under Oklahoma law individuals may disclose any “currently or recently used prescription or nonprescription drugs” at the time of sample collection. They are also afforded the right “to explain, in confidence, the test results.” Oklahoma law contemplates the involvement of a review officer, although it does not specifically detail the role of the review officer in interpreting test results or verifying prescription drug use. Because the Oklahoma law is to be “consistent with any federal laws and regulations for drug and alcohol testing in the workplace,” Oklahoma employers should have the review officer contact employees directly to verify test results and discuss prescription drug use. Under Oklahoma law, the review officer is to report only a positive or negative result and “shall not disclose to the employer, based on the analysis of a sample collected from an applicant or employee for the purpose of testing for the presence of drugs or alcohol, any information relating to the general health, pregnancy or other physical or mental condition of the applicant or employee.”

The takeaway

By relying on the role and responsibilities of your medical review officer, you can eliminate the possibility that you learn information about prescription drug use or health conditions that may allow an employee to claim disability discrimination.