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Posted: July 16, 2013

Prescription drug abuse: A workplace crisis

Employers should take proactive steps

Cole Wist

While prescription drugs are useful in fighting disease and illness, they pose serious risks when taken improperly.  Prescription drug abuse, (defined as “the intentional use of a medication without a prescription, in a way other than as prescribed, or for the experience or feeling it causes”), has now reached epidemic status.  Prescription drug abuse is now widely referred to as our nation’s “fastest growing drug problem.”    

A number of factors drive this phenomenon.  First, because prescription drugs are prescribed by physicians, many assume they are safe to take for any reason and under any circumstance.  Second, supply is high.  Between 1991 and 2010, prescriptions for stimulants increased from 5 million to nearly 45 million and prescriptions for painkillers rose from 75.5 million to 209.5 million.  Finally, prescription drugs are easily abused for non-medical purposes.   

Employers face complex challenges in this area.  Even if an employer’s policies state that it can discipline or terminate an employee who abuses prescription medication, an employer should proceed cautiously when an employee is suspected of prescription drug abuse.  Case law in this area underscores the open question of what constitutes excessive use or abuse of prescription drugs and specifically, whether excessive use of prescribed medication qualifies as illegal drug use.

 Further, while there are generally recognized and accepted standards for determining impairment from alcohol, setting rules regarding impairment from prescription drugs is more difficult.  Finally, the honor system generally does not work.  Many employers ask workers in safety-sensitive positions to self-report prescription drug use.  However, absent an accident, employers generally do not utilize effective measures to ensure that such information is accurate or complete. 

Complicating matters, regulators appear to be playing both sides.  Given the potential that prescription drug abuse can compromise workplace safety, the Occupational Safety and Health Administration (OSHA) has stated its support for measures that contribute to a drug-free workplace and drug testing programs within a workplace safety program for certain environments (such as those involving safety-sensitive duties).  At the same time, OSHA has also emphasized the “need to also take into consideration employee rights to privacy.” 

While OSHA does not have a specific standard addressing drug use in the workplace, Section 5(a)(1) of the Occupational Safety and Health Act (the General Duty Clause) is typically cited.  A violation of the General Duty Clause occurs when:  (1) the employer failed to keep its workplace free of a hazard; (2) the hazard was “recognized” either by the cited employer individually or by the employer’s industry generally; (3) the recognized hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible means available that would eliminate or materially reduce the hazard.   

Applying these criteria, prudent employers should update their safety and human resource policies and take proactive steps now.  Statistics demonstrate that prescription drug abuse presents a recognized occupational hazard that is likely to cause death or serious physical harm.  Substance abusers are more than three times more likely to be involved in workplace accidents and five times more likely to hurt themselves on the job.

This group is also responsible for 40 percent of all industrial fatalities.  According to OSHA, more than 10 percent of America’s workers who die while on the job test positive for drugs or alcohol.  Recent statistics also show that the rate of employees testing positive for prescription drugs increased by more than 40 percent in the last decade. 

Dr. Marcia Scott, a physician and instructor at Harvard Medical School summed up the dilemma as follows:  The use of prescribed drugs has increased because medicine has improved.  “Improved medicine means more employees are working today with chronic illnesses that once forced people out of the workplace.”  While this has resulted in increasing work tenure, it has also had the unintended consequence of “creating a greater opportunity for misusing or abusing legally prescribed drugs.” 

Employers must now grapple with these consequences.  Re-evaluation of drug policies, training of supervisors and employees, and monitoring enforcement trends are essential to an employer’s ability to positively influence this growing concern.

Cole Wist is a partner in Holland & Hart’s labor and employment practice. He has more than 20 years of experience representing employers in labor and employment matters, focusing on workplace safety and health and industrial crisis management. He can be reached at 303-290-1089 or cawist@hollandhart.com.

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