Drug Testing Patrick Flanagan pflanagan@cshlaw.com Hiring - - PDF document

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Drug Testing Patrick Flanagan pflanagan@cshlaw.com Hiring - - PDF document

Jan 05, 2024 254 likes •394 views

Employers Playbook for Managing the Opioid Crisis Best Practices Patrick Flanagan pflanagan@cshlaw.com Drug Testing Patrick Flanagan pflanagan@cshlaw.com Hiring Practices Patrick Flanagan pflanagan@cshlaw.com 1 Formal Job Description

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Patrick Flanagan pflanagan@cshlaw.com

Employer’s Playbook for Managing the Opioid Crisis Best Practices

Patrick Flanagan pflanagan@cshlaw.com

Drug Testing

Patrick Flanagan pflanagan@cshlaw.com

Hiring Practices

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Patrick Flanagan pflanagan@cshlaw.com

Formal Job Description

  • Expressly describes essential job

functions

  • Establishes general job

characteristics

  • Demonstrates the employer’s assessment that the

requirements are job-related and consistent with business necessity

  • Demonstrates an objective basis under which hiring

decisions can be made (sets up a defense in discrimination claims)

Patrick Flanagan pflanagan@cshlaw.com

Application

  • Include an EEO statement
  • Require applicants to certify that

they have given truthful and complete information

  • Include an at-will statement
  • Acknowledge that any false

information is grounds for not hiring

  • r, if hired, for immediate

termination

Patrick Flanagan pflanagan@cshlaw.com

Pre-employment Questions

Don’t ask questions likely to bring out information about a disability.

► Disability includes past addiction to drugs ► Disability includes past or present

addiction to alcohol

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Patrick Flanagan pflanagan@cshlaw.com

Pre-employment Questions

Don’t Ask:

► Do you have any disabilities? ► Describe your medical history. ► Do you have any prior workers’

compensation history?

► Have you had any recent

illnesses or operations?

Patrick Flanagan pflanagan@cshlaw.com

Pre-employment Questions

  • Ask:

► Are you able to perform the essential

functions of the job for which you are applying, either with or without an accommodation?

► Can you meet the attendance requirements

  • f this job?

Patrick Flanagan pflanagan@cshlaw.com

Illegal Drugs

Past drug addiction is protected by the ADA but current use of illegal drugs is not protected by the ADA. Past casual use of illegal drugs is not considered a disability, but you may not inquire about the extent of the past use of illegal drugs.

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Patrick Flanagan pflanagan@cshlaw.com

Illegal Drugs

Don’t Ask:

► Questions about past drug

addiction.

► Questions about past or present

alcoholism.

► Questions about enrollment in a

rehabilitation program.

Patrick Flanagan pflanagan@cshlaw.com

Illegal Drugs

Don’t ask:

► How often did you use illegal drugs

in the past?

► Have you ever been addicted to

drugs?

► Have you ever been treated for drug

addiction?

► Have you ever been treated for drug

abuse?

Patrick Flanagan pflanagan@cshlaw.com

Illegal Drugs

Ask:

► Do you currently use illegal drugs? ► If you do, what illegal drugs do you use? ► When was the last time you used illegal drugs? ► Have you used illegal drugs in the last six months? ► Have you ever been convicted of any drug or

alcohol related activity?

► Have you ever engaged in the illegal sale of drugs? ► Do you currently engage in the illegal sale of drugs? ► Have you ever used illegal drugs?

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Patrick Flanagan pflanagan@cshlaw.com

Legal Drugs

Don’t ask:

► Are you currently taking any

prescription drugs or medications?

► Have you taken any such drugs or

medications in the past?

Patrick Flanagan pflanagan@cshlaw.com

Legal Drugs

Ask:

► Generally about their wellbeing (e.g., How are

you?)

► If they look tired or ill, you can ask if she/he is

feeling okay?

► If they are sneezing or coughing, can ask

whether she/he has a cold or allergies?

► About non disability related impairments (e.g.,

How did you break your leg?)

► Whether she/he has been drinking? Patrick Flanagan pflanagan@cshlaw.com

Testing

► Tests to determine the current

illegal use of drugs.

► Psychological tests that measure

personality traits such as honesty, preferences, and habits

► Polygraph examinations. (As long as

no disability-related questions)

Procedures and tests employers may require prior to making an offer:

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Patrick Flanagan pflanagan@cshlaw.com

After the Offer….

It’s Your Window

  • f Opportunity

To gather medical information via medical examinations and/or medical questionnaires

…But Before the Hire.

Patrick Flanagan pflanagan@cshlaw.com

Disability-Related Inquiries and Medical Examinations of Applicants

General Rule:

► Post-Offer, Pre-Employment ► So long as they are for all entering

employees in the same job category.

► If screened out because of a disability,

must show that the exclusionary criterion was “job-related and consistent with business necessity.”

Patrick Flanagan pflanagan@cshlaw.com

Medical Examination

Any procedure or test that seeks information about an individual's physical or mental impairments or health. Factors to consider:

► Whether the test is administered by a health care

professional?

► Whether the test is interpreted by a health care

professional?

► Whether the test is designed to reveal an impairment

  • r physical or mental health?
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Patrick Flanagan pflanagan@cshlaw.com ► Whether the test is invasive? ► Whether the test measures an employee's

performance of a task or measures his/her physiological responses to performing the task?

► Whether the test normally is given in a medical

setting?

► Whether medical equipment is used?

Medical Examination-Cont.

Patrick Flanagan pflanagan@cshlaw.com

Drug Testing

If pre-employment drug test reveals the presence of an

  • pioid or other prescription

medication:

► Considered medical

examination

► May not discriminate

against individuals based upon medical examinations

Patrick Flanagan pflanagan@cshlaw.com

Drug Testing

May inquire:

► Was the drug legally prescribed? ► Can the employee perform the essential functions

  • f the job with or without accommodations?

► Can the employee do the job without posing a

direct threat due to a medical condition?

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Patrick Flanagan pflanagan@cshlaw.com

O ffe r of Em ploy m e nt A cce p te d

WOO-HOO!

Patrick Flanagan pflanagan@cshlaw.com

Drug Policies

  • Clearly define what is

prohibited behavior

  • Illegal Drugs
  • Illegal use of prescription drugs
  • Intentional misuse and abuse of

prescription drugs

  • Appropriate disciplinary action

Patrick Flanagan pflanagan@cshlaw.com

Drug Policies

  • Prescription drugs not prohibited if taken according

to doctor’s prescription

  • Consultation with doctor or pharmacist

to make sure the medication does not interfere with safe job performance

  • Safety of employee and fellow

employees

  • Use of proper personnel procedures (sick leave, request

change of duty, request accommodation, etc.)

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Patrick Flanagan pflanagan@cshlaw.com

Street Terms

Hillbilly Heroin, Oy, OC, Oycotton, Oxycet, Percs, Happy Pills, Vikes, Watson-387, Tuss, Big Boys Cotton, Morph, Kicker, Barbs, Reds, Red Birds, Phennies, Tooies, Yellows, Yellow Jackets, Candy, Downers, Sleeping Pills, Tranks, Totem Poles, Chill Pills, French Fries, Tranqs, Blues, Z-Bar, Bricks, Benzos, A-Minus, Zombie Pills, Skippy, The Smart Drug, Vitamin R, Bennies, Black Beauties, Roses, Hearts, Speed, Uppers, Kiddy Cocaine, West Coast, Crosses, LA Turnaround, Truck Drivers, Beans, Christmas Trees, Double Trouble, Rid, Jif, R-Ball, Rittys, and Rits

Patrick Flanagan pflanagan@cshlaw.com

Disability-Related Inquiry

  • Disability-related inquiry or medical examination may

be made when it is "job-related and consistent with business necessity.” The employer must have a reasonable belief, based on objective evidence, that:

► An employee's ability to perform

essential job functions will be impaired by a medical condition; or

► An employee will pose a direct threat

due to a medical condition

Patrick Flanagan pflanagan@cshlaw.com

Disability Related Inquiry

  • Direct threat means significant risk of

substantial harm that cannot be eliminated or reduced by reasonable accommodation. The following factors should be considered:

► The duration of the risk. ► The nature and severity of the potential harm. ► The likelihood that potential harm will occur. ► The imminence of the potential harm.

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Patrick Flanagan pflanagan@cshlaw.com

Disability Related Inquiry

  • Employer may know about a particular

employee's medical condition from observed performance problems.

  • Employer may be given reliable information by a

credible third party that an employee has a medical condition.

  • Employer may observe symptoms indicating that

an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.

Patrick Flanagan pflanagan@cshlaw.com

Disability Related Inquiry

  • Employer can ask an employee for documentation when

she/he requests a reasonable accommodation.

  • In limited circumstances, an employer may require

employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. (e.g. Airline Pilots; Police Officers)

  • Not if it is unlikely that the use of medications would

pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

Patrick Flanagan pflanagan@cshlaw.com

Action

  • Employer may require that an

employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice.

  • Medical examination, however, must be limited to

determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation.

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Patrick Flanagan pflanagan@cshlaw.com

Reasonable Accommodation

  • Employer may require an employee to provide

documentation that is sufficient to substantiate that she/he has an ADA disability and needs the reasonable accommodation requested.

  • Describes the nature, severity, and duration of the employee's

impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and

  • Substantiates why the requested reasonable accommodation

is needed.

Patrick Flanagan pflanagan@cshlaw.com

Monitoring

In limited circumstances, periodic medical examinations of employees in positions affecting public safety that are narrowly tailored to address specific job- related concerns are permissible.

Patrick Flanagan pflanagan@cshlaw.com

Termination

Must demonstrate that the employee is unable to perform his/her essential job functions or, in fact, poses a direct threat that cannot be eliminated or reduced by reasonable accommodation.

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Patrick Flanagan pflanagan@cshlaw.com

Other Laws and Regulations

  • An employer may make disability-related inquiries and

require employees to submit to medical examinations that are mandated or necessitated by another federal law or safety regulations. (e.g FAA, DOT, FRA, FTA)

  • The Occupational Safety and Health Act
  • The Federal Mine Health and Safety Act
  • Other federal statutes that require employees exposed

to toxic or hazardous substances to be medically monitored at specific intervals.

Patrick Flanagan pflanagan@cshlaw.com

EAP and Wellness

  • EAP counselor may ask employees about their medical

condition(s) if she/he is not acting for or on behalf of the employer; shields any information the employee reveals from decision makers; and has no power to affect employment decisions

  • Employers may conduct voluntary medical examinations

which are part of an employee health program without having to show that they are job-related and consistent with business necessity, as long as any medical records acquired as part of the wellness program are kept confidential and separate from personnel records

Patrick Flanagan pflanagan@cshlaw.com

Questions