The expanding medicinal and recreational legality of marijuana and the unchecked increase in prescription painkiller abuse continue to face employers with “unique practical and ethical challenges,” Debra L. Doby and Todd M. Jones, partners in Goldberg Segalla’s Workers’ Compensation Practice Group, wrote in IndustryWeek. Changing regulations regarding workplace safety and drug testing policies only complicate matters, leaving employers unsure of what can and cannot go into a drug policy — and even unsure if an employee’s positive drug test result can justify termination.
Debra and Todd went on to advise employers on how to maintain workplace safety, curb employee drug use and abuse, and avoid litigation over a decision to terminate, given current federal policies.
It was standard practice until recently for employers to drug test an employee after any workplace accident, but new federal regulations limit post-accident screenings to situations in which there is a “reasonable possibility” that drug use was a “contributing factor to the incident.”
“Now that employers can’t test everyone post-injury, it’s a good idea to consider shifting from an investigation-based drug abuse policy to a more preventive and assertive policy,” like pre-employment screenings and random drug tests, Debra and Todd wrote. Doing so requires a clearly written manual with specific designations and other terminology. Employers should also consider switching to a more comprehensive testing system, to catch prescription medications, like muscle relaxants, that could lead to an accident.
In the case of positive drug test results, employers should be aware that a decision to terminate an employee could meet a legal challenge. As medicinal and recreational drug laws rapidly change, there remains no clear ruling on how a positive test result for a prescribed drug could affect a person’s employment status. Debra and Todd advised that employers should treat such instances as they would an analysis under the Americans with Disabilities Act. In this case the employer must determine the legality of any prescription and examine the other specifics of the employee’s situation, including when and how the employee takes the drug and how the drug use could impair the specific employee’s duties, along with general concerns about safety in the workplace.