In recent years, the abuse of prescription opioid pain
medication has become a widely reported national epidemic. The New
England Journal of Medicine reports millions of Americans are addicted to
prescription pain medications, and The Centers for
Disease Control and Prevention finds that more people died from drug
overdoses in 2014 than in any year on record, with the majority of deaths from
opioids, and 78 Americans die every day from
an opioid overdose. Prescription opioid
abuse also has been linked to the national increase in heroin
addiction. Commonly prescribed
opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin,
Percocet), morphine (Kadian, Avinza) or medications containing Codeine.
However, a recent lawsuit by the Equal Employment
Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s
concern about prescription drug abuse in the workplace and complying with the
Americans with Disabilities Act (“ADA”).
According to the facts
given in the lawsuit, Kim Mullaney applied for a position with Happy
Jack’s Casino. The EEOC’s lawsuit states
that Mullaney had a recognized disability under the ADA involving chronic pain,
and had a valid prescription for the prescription drug Hydrocodone. Mullaney received a job offer from Happy Jack’s,
but the offer was withdrawn after a routine pre-employment drug test came back
positive for Hydrocodone. According to
the lawsuit, Mullaney told Happy Jack's
Casino that the test reflected prescription drugs that she took for her
disability, and even though she told them that she would provide additional
information if needed, Happy Jack's Casino refused to hire her. According to the Complaint:
Because [Happy Jack’s] didn’t offer Mullaney a
chance to offer proof that the drugs were prescribed by a doctor for a
medically-recognized condition, the company violated the Americans With Disabilities
Act. Blanket drug-testing rules that
cover legally-prescribed medications do not comport with the law
Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result. However, this lawsuit should service as a notice for employers to review their current drug testing policies. This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States. Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
A MESSAGE
TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"
A reader of
this blog asked if she could be included on an e-mail list for new posts.
I currently do not have an e-mail service but it seems like an excellent idea
and I will be setting it up in the very near future. If you would like to
be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com. Thanks!
