With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin.

• You must have a drug and alcohol policy in writing that includes the following:
  • A notification that reporting to work impaired by drugs (including over-the-counter or legally prescribed drugs) or alcohol is prohibited.
  • A notification that you will test employees who create a reasonable suspicion that they are impaired by any substance either by their behaviors or by their involvement in an on-the-job accident or property damage.
  • A requirement that employees notify you if they are taking a legally prescribed drug that can impair them while working.
  • A notification that even working under the influence of prescribed drugs may be prohibited if the substance causes the employee to be unable to perform his/her job or to be a threat to someone’s safety.
  • A warning that refusing a test, adulterating the specimen, or failing to cooperate when the test results arrive (by providing documentation that a drug has been lawfully prescribed, for example) will result in termination.
• You also need a written policy prohibiting disability discrimination that includes:
  • A notification that your workplace will reasonably accommodate employees with disabilities to allow them to continue to perform their jobs.
  • A notification that it is the employee’s responsibility to tell you if the employee needs a reasonable accommodation to perform the essential functions of his/her job.

A recent federal district court decision in Texas ruled in favor of an employer that had both of these written policies in place when sued by a former employee under the ADA. In Barnard v. L-3 Communications integrated Systems, L.P. (N.D. Tex 2017), the employer suspected the employee was impaired and required a drug test. When the test came back positive, the employer fired the employee, who claimed she was disabled and legally taking the drug. Her ADA claim was rejected by the court because the written policies said that the employee was supposed to disclose medications that could affect her job performance and to request a reasonable accommodation for her disability. She did neither before her suspicious behavior led to drug testing.

When you get a drug test result showing the use of a prescription drug like an opioid that can dramatically affect job performance, the Barnard case provides some comfort that you can terminate the employee if the employee failed to disclose the drug use and failed to request a reasonable accommodation for a disability.

If you don’t have these recommended written policies in place, then it gets more complicated. First, you will need to confirm that the detected drug is legally prescribed and used. Require the employee within a reasonable time to provide you with verification from his/her physician that the drug was legally prescribed and that the employee is taking it correctly.

In my experience, this is when we often find out that the employee has been using opioids illegally. If the employee cannot produce the medical documentation to show the drug discovered in the test was prescribed to that employee, then you have a situation of current drug abuse, which the ADA does not protect. Termination can follow if the employee has been given a reasonable chance to explain and document the drug use and has failed.

For an employee who does have a legal prescription for an opiate, but the drug still impairs his/her performance, you may need to also ask for medical documentation of the safety of the drug and its effect on the employee while the employee is performing the essential functions of the job. So, for example, if the employee normally drives a forklift at work, you can require documentation from the physician that the employee can safely continue to drive the forklift and adequately perform his other job duties while under the influence of a particular painkiller.

If the employee’s use of the drug makes the employee a direct threat to the safety of himself or others, or otherwise keeps him from doing his job accurately according to his physician (don’t play doctor by substituting your own opinion), then you’ll need to determine how to reasonably accommodate the employee’s disability and treatment for it. But all of that involves the complicated ADA procedure that might have been avoided if the recommended written policies were in place.