As the opioid-addiction crisis continues to ravage vast swathes of the U.S., employers are struggling to determine how to protect their workplaces without running afoul of federal and state laws against the backdrop of a tight-as-a-drum labor market.
The Equal Employment Opportunity Commission has recently cited a Pennsylvania company, Appalachian Wood Products Inc., for asking job applicants unlawful medical questions and refusing to hire them based on their disability or medical treatment. According to the EEOC’s lawsuit, the company refused to hire an applicant for a factory position because he was taking medically prescribed suboxone without considering whether it affected his ability to do the job safely (suboxone is a medication intended to help recovering addicts stay clean). The EEOC said the company has unlawfully barred applicants from certain positions if they were taking prescribed medications without determining whether the medications adversely affected their ability to perform the jobs in question.
“Federal law prohibits employers from subjecting applicants to pre-job offer medical exams or inquiries, and strictly regulates post-offer medical examinations, so that applicants can be fairly evaluated on their actual qualifications,” EEOC Regional Attorney Debra M. Lawrence said in a statement. “Employers risk violating the law if they make employment decisions based on unfounded fears or generalized assumptions about an applicant or employee’s disability or the possible effects of their medical treatment.”
Any possible side effects of legally prescribed drugs such as suboxone and methadone must be assessed by companies on an individualized basis, said EEOC Philadelphia District Director Jamie R. Williamson.
New Clarification from OSHA
Employers that want to drug-test employees in the wake of workplace accidents can breathe a bit easier, however, after a recent update from the Occupational Health and Safety Administration pertaining to an Obama-era rule. That rule, issued in 2016, stated that some post-incident drug testing and safety incentive programs may deter employees from reporting injury and illnesses, thus resulting in unlawful retaliation. However, the just-released OSHA memo updating the rule states that post-incident testing and safety incentives don’t violate anti-retaliation requirements unless “the employer took the action to penalize the employee for reporting a work-related injury or illness.” As per the memo, post-incident drug testing programs are lawful so long as all employees whose conduct could have contributed to the incident–and not just the employees who were injured in the incident–are tested, reports Lexology.
To Screen or Not to Screen?
With the unemployment rate running at or below four percent these days, should companies still be drug testing job candidates at all? After all, there have been no definitive studies concluding that people who test positive on drug tests perform worse on the job than those who test negative, writes N.Y.U. Professor Mark A.R. Kleiman in a recent piece on Vox.
Although 70 percent or so of companies with 2,500 or more employees screen job applicants for drug use, the evidence that doing so leads to better job performance “is surprisingly thin,” he writes.
The existing evidence consists largely of two studies of postal workers done in the late 1980s, writes Kleiman. The studies found that employees who’d tested positive for drug use prior to employment had more frequent absences and were more likely to be fired than those who tested negative, and that employees who’d tested positive for cocaine performed worse than the (larger) group who’d tested positive for cannabis. Neither study included any significant number of opioid or methamphetamine positives–two of the drugs that most concern us today, he writes.
“Do two generation-old studies, both of postal workers, constitute anything like an adequate basis for policies applied today to such a wide range of workplaces with diverse workforces?” Kleiman writes. “To my knowledge, no one has done anything resembling a benefit-cost analysis, either from a company perspective or from a social perspective.”
One approach, he writes, might be to measure the performance (attendance, productivity, absences, turnover) of employees whose drug-screen results came in just under the “cutoff” levels used by most drug-testing providers against employees hired at the same time who tested at zero.
It may be that pre-employment drug testing is cost-justified in a tight labor market, especially for safety-sensitive jobs, Kleiman writes. However, he concludes, at a time when “drug-war passions are fading and job applicants are hard to find,” employers might want to take a second look at whether testing actually does the job it was designed to do.