About WISHRM

By: Judy Kneiszel

True or false: An applicant or employee taking opioids could pass a drug test. The answer is True, and not because the person administering the test was somehow outsmarted.

Because opioids can be legitimately prescribed and used as medication, they should not result in a failed drug test result when they’re being used under a doctor’s orders.

However, it’s certainly true that opioids can also be abused. More than 11 million people misused prescription opioids in 2016, according to the U.S. Department of Health and Human Services.

A drug test will show that opioids are in a person’s system, but won’t tell you why they’re there. So how do you tell the difference between legitimate use and abuse?

For help in answering that question, we spoke with employment lawyer Jonathan Segal of Duane Morris. He points out that both the prevalence of opioid use and the importance of employee safety can’t be underestimated and offers these suggestions for keeping your workplace safe without abusing an employee’s rights under nondiscrimination laws.

1. Rely on your MRO. A drug test sample typically goes from the collection site to a lab where it’s analyzed. If the amount of drugs in the sample is above an established level or if there are other questions about the results, it should go to a medical review officer (MRO).

The MRO determines if there is a legitimate reason for the positive test (such as prescription medication) or if it’s due to illegal drug use. As part of the process, the MRO may consult with the employee or applicant for information about prescription medication.

Having a medical review officer (MRO) assess a drug test keeps medical information at an arm’s length from the employer and allows a professional to determine whether the presence of opioids is a concern.

“No responsible employer should ever do drug testing without a medical review officer,” Segal said.

2. Time the test right. If job applicants are required to pass a drug test, it’s fine to test them for opioids. However, the test should be done after a conditional offer of employment has been made.

“A test for lawful drugs such as opioids is a question about medication and should be made post-conditional offer,” Segal said. “That’s a risk area I’ve seen in some policies.”

The drug test itself is not a medical exam and could be done at any point in the hiring process. However, if the test indicates that opioids are present, this could reveal information about medication and might also lead to a discussion about why it’s being taken.

This is information that shouldn’t be addressed until after an employment offer has been made, under guidance from the Equal Employment Opportunity Commission (EEOC) on the Americans with Disabilities Act (ADA).

3. Focus on safety. After the job offer has been made, an employer can ask if the applicant is taking any medication that would create significant safety risks. A “yes” answer shouldn’t automatically lead to the offer being revoked, however.

“If the individual answers yes, then an evaluation needs to be done under the ADA to see whether that medication creates a significant risk of substantial harm to themselves or others,” Segal said.

If the answer to that is also yes, the employer needs to take the next step of seeing whether there is an accommodation that would minimize the danger, so it is no longer a significant risk of substantial harm.

“This is really important,” Segal said. “I’ve seen some employers say, ‘I can just ask the question and if they say, ‘Yes I am taking a medication’ they can deny the job,’ and they can’t.”

4. Get a professional opinion. An assessment of whether medication causes a safety risk isn’t something an HR professional needs to make on their own. It’s fine to speak with the individual’s doctor, who will need the OK from the employee or applicant to discuss this.

The discussion should revolve around job functions, however, not the employee’s health.

“[The HR professional] doesn’t ask why they gave them the medication,” Segal said. “What they do ask is, ‘These are the job functions, are there any of these the individual cannot do safely?’”

If there are certain job functions an employee should not perform, the process continues with consideration of accommodations.

5. Require notification. It’s not only a drug test result that could alert an employer that a worker is taking medication that could cause a safety issue. An employer can require employees to notify the company when they’re taking a medication that could interfere with their ability to perform their job safely with respect to themselves and others, Segal notes.

The employer should not ask about specific medications or health conditions, however, should let employees know that making this disclosure won’t cost workers their job.

“It needs to be clear that disclosure will not automatically result in termination of employment, but in interactive dialog,” Segal said.