Growing Opioid Abuse Presents Problems For Employers

Over the past 25 years, workplace drug testing has become increasingly widespread and accepted and for good reason - many companies that implemented drug testing saw dramatic decreases in employee accidents and injuries. In some cases, the declines exceeded 70 percent. Moreover, many applicants who use illegal drugs now know better than to waste their time applying for work at companies who make their testing policies known.

Today, however, a new substance abuse threat is rapidly emerging. This threat has nothing to do with efforts to broaden the legal use of marijuana. That is a topic for another day. This emerging threat may pose dangers and dilemmas as serious as any that employers have faced since passage of the Drug Free Workplace Act of 1988. Specifically, it is the burgeoning use and abuse of opioid painkillers, which have become the most widely prescribed and highly abused of all prescription drugs. The U.S. has one of the highest per capita rates of opioid use in the world.

How widespread is this threat? In recent years, more people 25 to 64 years old in the U.S. died from drug overdoses than from car crashes, according to the Centers for Disease Control and Prevention. About 71 percent of those deaths were tied to prescription opioids. Deaths from prescription opioids now exceed deaths from heroin and cocaine combined. That total does not begin to count the injuries, near misses and lost productivity related to abuse of opioids, which include hydrocodone and oxycodone, among other drugs. Although they may be no more effective than acetaminophen or ibuprofen, according to the National Safety Council, such medicines are commonly prescribed for work-related injuries, including the broad category of soft-tissue injuries and musculoskeletal problems. The use of these drugs can also be associated with conditions protected under the Americans with Disabilities Act, which requires employers to tread far more carefully than when employees test positive for the use of an illegal substance. (The current use of illegal drugs is not protected under the ADA.)

Even though workers may feel more defensive about their employers testing for the use of legally prescribed medicine, companies must now consider doing exactly that. Specifically, a critical step for employers must be to go beyond the standard five-panel drug test, which will not detect a semisynthetic, opioid-like oxycodone or many other often-abused drugs. The five-panel test covers opiates/heroin, cocaine, marijuana, PCP and amphetamines. In today's environment, employers should consider including testing for benzodiazepines, oxycodone and methadone. If Dilaudid or fentanyl is commonly used in its locale, the employer should also include testing for these substances. Drug-testing companies and qualified, independent medical review officers can provide helpful guidance regarding drug testing. As a licensed doctor who will receive and review drug test results, a good MRO plays a vital role in establishing and maintaining the integrity of an effective drug-testing program.

Before implementing a more expansive drug-testing program, employers must develop an appropriate policy and prepare the workforce for its rollout. In many workplaces, the revised policy may not be dramatically different from the one already in place. It should state that all employees who are taking over-the-counter or prescription medicine are responsible for consulting with their physician or pharmacist about whether use of a particular medicine could interfere with safe performance of employee duties. The policy should explain that if use of any medicine could endanger the safety of anyone, employees must notify their supervisor or company physician and either take time off or request a change in duties, to avoid potentially unsafe situations. Company policy should explicitly ban the illegal or unauthorized use of prescription medicine and state that misuse or abuse of prescription medicine represents a serious violation that could result in termination. The policy and related materials should define what constitutes reasonable cause for drug testing and address whether the company will conduct random testing. Of course, the policy should protect the privacy and dignity of everyone being tested.

To prepare workers for further-reaching drug testing, employers should share information and data, illustrating why such testing is important to everyone's safety. No employees would want an impaired coworker to operate a company vehicle or other equipment. Instead, employees want to work in a safe environment and will appreciate a well-reasoned explanation supported by facts.

Equally important, explain to employees that test results will be handled confidentially and be shared only on a limited, need-to-know basis. Highlight the qualifications and role of the third-party MRO, stressing her role in ensuring the accuracy of test results and maintaining their confidentiality. Consider presenting hypothetical examples to explain how the MRO will apply company policy to real-life situations. This process can emphasize the responsibility that employees must assume, to talk with their doctors or pharmacists about their medication before taking it and coming to work. It is of course a good idea to distribute a copy of the policy and to have employees acknowledge in writing their receipt of the policy.

Additionally, employers should provide educational information about safe handling of medicines at home, problems associated with misuse of prescription medicine and how to avoid related problems. A strong drug-testing program should also be supported by an effective Employee Assistance Program, where employees can go confidentially for information, support and even treatment.

Supervisors should receive additional training beyond that provided to the rest of the workforce. It is important that all supervisors, at a minimum, understand the policy and how it will be implemented, which necessarily includes training on how to spot signs of impairment and what to do when they suspect a problem. Supervisors should be comfortable talking about the policy with their employees and must know where to go with questions. It is also necessary that employers ensure supervisors go through training on what to do if or when an employee reports that he is taking prescription medicine and needs time off, reassignment or another possible accommodation.

Of course, even more training will be needed for those who will actually be approving decisions regarding testing, collecting and/or handling specimens and communicating with the MRO and/or EAP. At each step, consistency, accuracy and privacy are of paramount importance. Finally, be prepared for some questions and skepticism, but do not react defensively to it. Instead, demonstrate respect for employee concerns, particularly their privacy, and continue to emphasize that the company's priority is employee safety. The broader scope of testing is a reflection of that priority and the realities of today's workplace. Proceeding collaboratively with their workforce, employers can make a positive difference in improving safety, both at work and when employees are off duty.

This article originally appeared on Law360 on April 6, 2015.