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Originally published Sunday, October 24, 2010 at 10:05 PM

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Prescription-drug use an issue for employers

The news, delivered by phone, left Sue Bates aghast: She was losing her job of 22 years after testing positive for a legally prescribed...

The New York Times

LAWRENCEBURG, Tenn. — The news, delivered by phone, left Sue Bates aghast: She was losing her job of 22 years after testing positive for a legally prescribed drug.

Dura Automotive Systems had changed the policy at its plant to test for certain prescription drugs as well as illicit ones. The medication that Bates was taking for back pain — hydrocodone, a narcotic prescribed by her doctor — was among many the auto-parts company suddenly had deemed unsafe.

"I don't think it should end the way it did," said 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 across the country. Americans' growing reliance on drugs for pain, anxiety and other maladies suggests many are reporting to work with potent drugs in their systems, and employers are grappling for ways to address that.

What companies consider a pursuit of a safe workplace is drawing complaints from employees who cite privacy concerns and contend they should not be fired for taking legal medications, sometimes for injuries suffered on the job.

"This may be the point guard for an important societal issue," Dr. Robert 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 little independent data regarding prescription-drug impairment in the workplace. But Quest Diagnostics, a provider of workplace drug tests, said the rate of employees testing positive for prescription opiates increased by more than 40 percent between 2005 and 2009, and by 18 percent last year. The data, culled from more than 500,000 drug tests, also indicated workers 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 de Bernardo, executive director of the Institute for a Drug-Free Workplace, a nonprofit business coalition. "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 Dura's plant. 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 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, said he had treated "a lot of miners telling me the ridiculous amount of drugs they're doing underground," most of them legally prescribed.

Employer challenges

Setting prescription-drug rules in the workplace is tricky, not least because it is difficult to prove impairment. Dura considered a drug unsafe if its label included a warning against driving or operating machinery, but doctors say many users function normally.

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Also, some employers fear violating the Americans with Disabilities Act (ADA). The law prohibits asking 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 ADA that essentially suggests, 'Don't ask, don't tell,' " said Steven Bernstein, an employment lawyer in Tampa, Fla.

The only exception is for police officers, firefighters and others in public-safety jobs, said Christopher Kuczynski, assistant legal counsel in the Equal Employment Opportunity Commission's ADA policy division. They can be required to self-report use of prescription medication if their inability or impaired ability to perform 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 such as OxyContin and Vicodin, anti-anxiety drugs such as Xanax, or other controlled prescription drugs.

"It's a very serious hole in the system," said Dr. Robert DuPont, president of the Institute for Behavior and Health.

Donna Bush, a senior forensic toxicologist at the Substance Abuse and Mental Health Services Administration, which sets federal drug-testing parameters, said the group is 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."

National efforts

Dura's implementation of the drug tests coincided with its participation in Tennessee's Drug-Free Workplace Program, which provides incentives that include lower workers' compensation insurance premiums.

Many states have a drug-free-workplace program — a concept developed after Congress passed the 1988 law requiring companies with federal contracts to adopt drug policies. But the programs barely have changed and focus heavily on illegal drugs.

Meanwhile, drug-testing laws are complex and vary from state to state. Several prohibit or greatly restrict random testing; many others give employers broad discretion, even providing incentives such as discounts on workers' compensation.

Employers can ask workers in safety-sensitive jobs to self-report potentially dangerous prescription medications, but cannot ensure they do so.

In Washington state, Dr. Michael Schiesser, president of the Washington Society of Addiction Medicine, said he's not aware of laws restricting the manner or scope of drug testing for most employees.

"There are no standard laws covering employment [drug testing] in general," he said. "Basically, an employer can do whatever the heck they want" — barring language in individual or union contracts.

A state law giving drug-free-workplace programs a discount on workers' compensation premiums expired in 2001 after a study found the programs had little effect outside construction, manufacturing and services.

Dr. Gary Franklin, medical director for Washington State Department of Labor & Industries, noted that the study, which he co-authored, was done in the 1990s, before prescription opiate abuse became a significant problem.

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 trained to look for "reasonable suspicion" of impairment, necessary under law to warrant testing.

While Dura officials said in court documents that the goal of expanded testing was to protect employees, some plaintiffs claim they were injured on the job and supervisors knew about the medications. Others say they believe the company wanted to get rid of them to save on insurance premiums, a charge the company has denied.

Bates says she understands Dura's safety concerns but believes the company should have worked with employees.

"If the medicine they're taking is not good for them or the workplace," she said, "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."

Seattle Times health reporter Carol M. Ostrom contributed

to this report.


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