Question: One of our employees failed a random drug test. He says the positive test occurred because he was prescribed methadone by his doctor to treat his addiction to opiates. Do we have to retain him? We’re concerned about safety.
Answer: If your drug testing process had included the services of a Medical Review Officer (MRO), a licensed physician with experience in substance abuse issues who reviews test results before they’re reported to an employer, the test result almost certainly would have been reported to you as negative. If the employee’s statement is true and the employee was using the medication properly under advice from his physician, then you cannot fire the employee for receiving medically supervised rehabilitation treatment. According to the National Institute on Drug Abuse, methadone has been used for over 40 years as an effective treatment for opioid addiction. Prior drug addiction is considered a disability under the Americans with Disabilities Act (ADA) and state law. The Equal Employment Opportunity Commission (EEOC) has filed multiple lawsuits against companies that discriminate against workers who use methadone pursuant to a doctor’s orders (see EEOC press releases 10/9/18 (wood products company), 6/29/18 (painting company), and 2/8/16 (temporary staffing agency)). Taking employment action against employees based on fears or stereotypes about their disabilities or treatment programs violates the ADA.
As for your safety concern, the ADA allows you to seek a medical opinion regarding whether an employee poses a direct threat to health and safety at work. However, you cannot ask for medical information based on assumptions and speculation. Ideally, you should identify specific behaviors and observations that justify the inquiry. In this instance, if the employee has been performing his job successfully and you haven’t actually observed any problematic behavior or safety issues that could be side effects of the medication, you may have difficulty showing that your request was job-related and consistent with business necessity if you are later challenged on it. When balancing ADA compliance with workplace safety, though, there may be times when you land on the safety side of the equation and you decide to proceed with requesting a fitness-for-duty exam. If you take that step, you should provide a copy of the job description, describe the employee’s work schedule, explain your understanding that the employee is taking a specific medication, and ask the doctor to verify that the employee can perform the job safely. See our Model Form, Fitness-for-Duty Report.
Some employers also choose to have a policy that requires employees in safety-sensitive positions to disclose the fact that they are taking medications that may impair their safety on the job. With this policy, employees should be instructed not to name the medication in their disclosure. Then the employer can ask for a fitness-for-duty report to address any safety concerns without getting mired in private medical matters.
Compliance with the ADA is a tricky business. A host of legal obligations may be triggered when you receive notice that an applicant or employee has a disability. You can ask for a fitness-for-duty exam only if the disability actually affects the individual’s ability to perform the job. A specific analysis is required in each case. Call your Vigilant Law Group employment attorney before you proceed. For more information, see our Legal Guide, Prescription Drugs in the Workplace. You may also find it helpful to review the Job Accommodation Network’s web page on drug addiction.
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