LAWRENCEBURG, Tenn. — The news, delivered
in a phone call, left Sue Bates aghast: she was losing her job of 22
years after testing positive for a legally prescribed drug.
Her employer,
Dura Automotive Systems,
had changed the policy at its sprawling plant here to test for certain
prescription drugs as well as illicit ones. The medication that Mrs.
Bates was taking for back pain — hydrocodone, a narcotic prescribed by
her doctor — was among many that the company, which makes car parts, had
suddenly deemed unsafe.
“I don’t think it should end the way it did,” said Mrs. Bates,
an assembly line worker who has sued Dura
for discrimination and invasion of privacy. “You tell somebody you lost
your job because you’re on prescription medication and they’re like,
‘Yeah, right.’ ”
Two decades after the
Supreme Court
first upheld the right to test for drugs in the workplace, Dura’s
concern — that employees on certain medications posed a safety hazard —
is echoing around the country. The growing reliance of Americans on
powerful prescription
drugs for pain,
anxiety and other maladies suggests that many are reporting to work
with potent drugs in their systems, and employers are grappling for ways
to address that.
What companies consider an effort to
maintain a safe work environment is drawing complaints from employees
who cite privacy concerns and contend that they should not be fired for
taking legal medications, sometimes for injuries sustained on the job.
“This may be the point guard for an
important societal issue,” Dr. Robert T. Cochran Jr., a Nashville pain
specialist who treats three of the Dura plaintiffs, said of the lawsuit
against Dura. “How do we address these drugs as a society?”
There is a dearth of data from
independent groups regarding impairment from prescription drugs in the
workplace, partly because the issue has not drawn broad scrutiny. But
Quest Diagnostics,
a prominent provider of workplace drug tests, said that the rate of
employees testing positive for prescription opiates rose by more than 40
percent from 2005 to 2009, and by 18 percent last year alone. The data,
culled from the results of more than 500,000 drug tests, also indicated
that workers who were tested for drugs after accidents were four times
more likely to have opiates in their systems than those tested before
being hired.
“It’s not nearly on employer radar screens as much as it should be,” said Mark A. de Bernardo, executive director of the
Institute for a Drug-Free Workplace,
a nonprofit business coalition near Washington, and a senior partner at
Jackson Lewis, an employment law firm. “Given the liability for
industrial accidents or product defects or workplace injuries involving
prescription
drug abuse, employers cannot afford not to address this issue.”
Nor is the problem limited to factory
floors like the one at Dura’s plant here, where conveyor belts are in
constant motion and tow drivers shuttle pieces of glass from station to
station, former workers said. In Texas, a prominent prosecutor resigned
in 2008 after a scandal for which he blamed impaired judgment because of
prescription drugs. And in Missouri, a patient sued alleging that a
doctor had torn a hole in his colon during a 2006
colonoscopy while taking the painkiller oxycodone.
Dr. Carl Rollyn Sullivan, director of addictions programs at the
West Virginia University
School of Medicine in Morgantown, said he had treated “a lot of miners
telling me the ridiculous amount of drugs they’re doing underground,”
most of them legally prescribed.
Challenges for Employers
Setting rules about prescription drug use
in the workplace is tricky, not least because it is difficult to prove
impairment. Under Dura’s policy, a prescription drug was considered
unsafe if its label included a warning against driving or operating
machinery, but doctors say many users function normally despite such
warnings.
Also, some employers find it difficult to deal with the problem partly for fear of violating the
Americans with Disabilities Act.
It prohibits asking employees about prescription drugs unless workers
are seen acting in a way that compromises safety or suggests they cannot
perform their job for medical reasons, according to lawyers with the
Equal Employment Opportunity Commission.
“We’re up against 20 years of training on the A.D.A. that essentially suggests, ‘
Don’t ask, don’t tell,’ ” said Steven M. Bernstein, an employment lawyer with Fisher & Phillips in Tampa, Fla.
Christopher J. Kuczynski, assistant legal counsel in the
Equal Employment Opportunity Commission’s
policy division for the Americans with Disabilities Act, said, “The
employer must have reasonable belief the person is unable to do the job
or poses a threat based on a medical condition.”
The only exception is for police
officers, firefighters and others in public safety jobs, Mr. Kuczynski
said. They can be required to self-report the use of prescription
medication if their inability or impaired ability to perform their job
functions would result in a direct threat, he added.
Even with bus and truck drivers, nuclear
plant workers, and others in jobs that the federal government deems
“safety sensitive,” employers are required to test for only six
categories of drugs that do not cover synthetic painkillers like
OxyContin and Vicodin, anti-anxiety drugs like Xanax, or other
controlled prescription drugs. (Because the test looks for codeine and
morphine, which experts say are far less abused than the synthetics,
many employers wrongly assume it looks for all opiates.)
“That is just a devastating critique of the government’s role in this,” said Dr. Robert L.
DuPont, president of the
Institute for Behavior and Health near Washington. “It’s a very serious hole in the system.”
Dr. Donna Bush, a senior
forensic
toxicologist at the Substance Abuse and Mental Health Services
Administration, which sets parameters for federal drug testing, said the
group was not pushing to add more prescription drugs.
“Which ones do we add?” she asked. “Drug testing for illicit illegal drugs is very easy because presence is an offense.”
Employers can choose to test for more
drugs, which is what Dura decided to do at its Lawrenceburg plant in
2007. Citing concerns about drug use and worker safety, Dura hired an
independent company to administer random drug tests. Dura chose to
screen for 12 types of drugs, including hydrocodone and oxycodone.
“The goal of the plan was to provide a
safe environment,” Lindy Boots, the plant’s former human resources
manager, said in a deposition.
The concerns were not totally unfounded,
some employees who worked at the plant said in interviews. A plaintiff
said he knew of workers using illegal drugs on the job, and other former
employees said they suspected people were passing around prescription
drugs.
“If they had a
headache
or something was hurting some of them would give them one of their
Lortabs,” said Willarene Fisher, a former employee who failed the drug
test, of her former co-workers. Ms. Fisher is also suing.
Court records show that over a week in
May 2007, about 500 employees at the company’s Lawrenceburg plant
submitted urine samples under the new testing policy. Of those, 44
tested positive for prescription drugs. They were put on a 30-day leave
of absence and had to pass a second test to return to their jobs.
Susan Lowery, a former supervisor at the
plant who tested positive for oxycodone, said the drug had kept her
functioning after three back surgeries and did not affect her job
performance.
“My record was clean,” said Mrs. Lowery, a
plaintiff in one of two lawsuits against Dura. “I was there every day
no matter how I felt.”
National Efforts
The drug tests coincided with Dura’s participation in Tennessee’s
Drug-Free Workplace Program, which provides incentives that include a premium credit on workers’ compensation insurance.
Many states have a drug-free workplace
program, a concept that developed after Congress passed the 1988 law
requiring companies with federal contracts to adopt drug policies. But
the programs have barely changed in the 20 years since they were
conceived and focus heavily on illegal drugs.
Meanwhile, the laws on drug testing are
complex and vary from state to state. Several, for example, prohibit or
greatly restrict random drug testing, while many others give employers
broad discretion, even providing incentives for employers to drug test
their employees like discounts on workers’ compensation premiums.
Employers can ask workers in
safety-sensitive jobs to self-report any potentially dangerous
prescription medications, but they cannot ensure they do so.
“If somebody puts his head down on a
desk, do you test him for drugs or not?” he said. “The first time you
get an employee who says you’re harassing them, you’re not going to test
anyone else even if they’re passed out.”
Many doctors, meanwhile, say that most people can tolerate and function well on pain medication taken under their supervision.
“In general,” said Dr. Seddon R. Savage, a pain specialist at
Dartmouth College and president of the
American Pain Society,
“well-prescribed opioids at a stable dose that are well supervised in
most healthy people won’t cause sedation or other cognitive problems.”
Dr. Cochran said that opiate painkillers can help workers do their jobs better if taken appropriately.
“I think they terminated some people who were not in any way compromised,” he said of Dura.
Yet Dr. Cochran also estimated that about
15 percent of his patients misused painkillers and said that he
understood why employers would be worried.
At the very least, Dr. DuPont said, the
standardized testing that is now mandatory for transportation and
nuclear workers should be expanded to include more legal drugs. The
Substance Abuse and Mental Health Services Administration recently added
a sixth drug, ecstasy, to the panel of five —
marijuana; cocaine;
amphetamines; phencyclidine, or
PCP; and nonsynthetic opiates — that it has long required safety-sensitive workers to be tested for.
That leaves employers in even the most
safety-sensitive fields to make their own decisions about whether to
test for synthetic opiates and other commonly used legal drugs. And many
are skittish, even though anecdotes abound about people misusing or
abusing prescription drugs in the workplace.
“I’ve seen people have their fingers cut
off because they or somebody they depended on to operate machinery
properly was out of it,” said Dr. Neil Capretto, medical director at
Gateway Rehabilitation Center
in Aliquippa, Pa. “We treat some people in construction who say so many
of their co-workers are using, they sometimes have to change careers
because it’s too much of a trigger for them to go back to work after
rehab.”
Finding a Balance
Dr. Barry Sample, director of science and technology for the Employer Solutions business of
Quest Diagnostics,
said the smartest thing employers can do is come up with a thorough and
consistent policy that spells out which drugs their workers might be
tested for and under what circumstances.
Supervisors, he said, should be carefully
trained to look for signs of impairment — the “reasonable suspicion”
necessary under law to warrant testing.
“They need to understand what constitutes
reasonable suspicion,” he said, “and make sure the policy is
communicated clearly and very well to the employees who are going to be
impacted.”
But some worry that employers wading into
the realm of prescription drugs could infringe on privacy and dredge up
stereotypes about people who take certain medications.
“People make stereotypical assumptions
about certain medications, whether they’re prescription or
over-the-counter, and use those prejudices from prohibiting people from
maintaining gainful employment,” said Nick Pladson, an Equal Employment
Opportunity Commission lawyer in Minneapolis who is suing a
manufacturing company on behalf of a man who was required to disclose
the prescription drugs he was taking and was later fired.
Although Dura officials said in court
documents that the goal of expanded testing was to protect employees,
some plaintiffs in the lawsuits claim they were injured on the job and
supervisors knew about the medications they were taking. Others say they
believe the company wanted to get rid of them because they were costing
it thousands of dollars in insurance premiums, a charge the company has
denied.
“The reason I was taking the medication
was a work-related injury,” said Mark Long, 38, who worked at Dura and
was fired for taking hydrocodone. “I really didn’t expect for my job to
end.”
Supervisors worried that employees, who manufactured hundreds of thousands of windows for automotive companies including
General Motors and
Ford within very close proximity of one another, could cause a “domino effect” if one was impaired and had an accident.
Mr. Long said he had stopped taking
Lortab after losing his job because the pain subsided when he was not
working full-time. With work scarce in Lawrenceburg, a city of 14,000 in
south-central Tennessee, Mr. Long drives 70 miles each way to work as a
boat mechanic in northern Alabama.
Mrs. Bates, whose job was trimming car
window molding, said she had been unable to find another job. She said
she understood Dura’s safety concerns but believed the company should
have worked with employees who take prescription drugs rather than fire
them.
“If the medicine they’re taking is not
good for them or the workplace, then there should be some sort of
program where they can teach us how that affects you or see if something
else can be worked out,” Mrs. Bates said. “But that was not an option
for us.”
