The Do s and Don t s of Prescription Drug Disclosure

Transcription

1 The Do s and Don t s of Prescription Drug Disclosure Guest Speaker: Tommy Eden, III Management and Labor Attorney Charlton Owensby. M.D., J.D., MBA Medical Review Officer for Wolfe, Inc. Moderator: Kendra Sherrod Constangy, Brooks & Smith, LLP

2 The DO s and DON Ts of Prescription Drug Disclosure Tommy Eden Attorney/Trainer Constangy, Brooks & Smith, LLP 2

3 Legal Disclaimer This presentation is for educational purposes only and is not intended as a substitute for the legal advice of an attorney knowledgeable of the issues covered as they relate to a user s individual circumstances. The presenter makes no assurances regarding the accuracy or completeness of the following information. Legislative, regulatory, case law and medical developments regularly impact on general legal research and medical information. "No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."

4 Dura Automotive- What went wrong?

5 Dura Automotive- What went wrong? Blanket drug test of 400 employees; safety sensitive glass manufacturing positions not clearly defined; 12 panel rapid screen urine drug test covering illegal and prescription medications; MRO reviewed non-negative test and pronounced those with prescriptions had passed the test; However, Dura directed employees to bring prescription bottles to determine driving or operating machinery warnings;

6 Dura Automotive- What went wrong? Dura directed employees taking impairing effect prescription medication to cease or be fired; Dura retested and those positive for lawful impairing effect prescriptions were fired; In 2008 the 6 employees filed an ADA suit claiming improper medical testing and medical inquires by Dura; ADA Jury Verdict awarded to 6 employees $870,000 against Dura, which it appealed; EEOC filed ADA lawsuit against Dura settled in 2012 for $750,000 with extensive consent decree; August th Circuit Court of Appeals revisited jury verdict instructions and remanded to trial court;

7 Workplace Impairing Medication Use CANNOT be Ignored

8 Opioid Painkiller Abuse Rampant July 1, 2014 CDC Report

9 ACOEM Practice Guidelines: Opioids and Safety-Sensitive Work New American College of Occupational and Environmental Medicine guidelines state, Acute or chronic opioid use is not recommended for patients who perform safety-sensitive jobs. These jobs include operating motor vehicles, other modes of transportation, forklift driving, overhead crane operation, heavy equipment operation, sharps work (eg, knives, box cutters, needles), work with injury risks (eg, heights) and tasks involving high levels of cognitive function and judgment. Medications Conclusion: Quality evidence consistently demonstrates increased risk of vehicle crashes JOEM Volume 56, Number 7, July 2014 Copyright 2014 by American College of Occupational and Environmental Medicine

10 The DO s and DON Ts of Prescription Drug Disclosure

11 DO include a legally vetted pre-duty impairing effects prescription medication disclosure safety policy in your drug testing policy

12 DO make the pre-duty disclosure policy only applicable to safety sensitive employees

13 DO evaluate and define in a written report what positions are considered safety sensitive using a legally vetted definition

14 DO direct employees to confidentially report impairing effect prescription medication usage only to a trained drug testing program administrator and not frontline supervisors

15 DO update your job descriptions to include as an essential safety function the ability to work in a constant state of alertness and safe manner

16 DO direct employees to their treating physician in the first instance to make an individualized assessment of the employee's clearance to safely perform their duties while taking the impairing effect medication

17 DO provide the reporting employee written directions and a clearance form for their own treating physician to make a confidential report-with an updated copy of their job description attached

18 DO retain your own consulting MRO/occupational physician to guide you through the disclosure and evaluation process and interface with the treating physician, and support expanded panel program setup

19 DO conduct two hours of ADA supervisory disability discrimination training on: (1) what constitutes an ADA disability related inquiry; (2) what constitutes an ADA medical examination; and (3) the proper steps to make a prescription medication inquiry

20 DON T require the employee to initially report under your safety policy the name of the prescription medication, or the reason for the prescription, only that they are taking an impairing effect medication or substance

21 DON T allow your frontline supervisors to make a disability or medical inquiry of employees without proper training

22 DON T condition an employee's continued employment upon the employee s discontinuing use of a legally prescribed medication - unless, after an individualized medical assessment, a physician concludes in a written report that discontinuance is job-related and consistent with business necessity

23 Making the Case for Business Necessity OSHA General Duty Rule Section 5. Each Employer: (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

24 DON T skip the ADA reasonable accommodation interactive dialogue step even after you have the physician s report in hand

25 DON T disclose results, or conduct drug rapid screens, in the presence of peers where it may disclose the use of prescription medications and/or a disability

26 DON T take unnecessary risk when you conduct expanded panel drug testing outside of the approved state drug panel without legal and medical guidance

27 Following these DO s and DON Ts of Prescription Drug Disclosure 27

28 Will allow you to own this face of pure accomplishment!

29 How to Contact Trainer: Tommy Eden Attorney at Law Constangy, Brooks and Smith, LLP 3120-D Frederick Rd. Opelika, AL West Point, GA (205) (mobile) #tommyeden3 29

30 Wolfe, Inc Constangy, Brooks & Smith, LLP