Drug Testing 2011

In our efforts to get along with the European aviation people you no doubt have read about our efforts to get their maintenance people to do drug and alcohol testing and background checks, on their employees, like we do here in our country, regarding...

Reports say that many employees are now worrying about other employees who use strong prescription drugs causing accidents and injuries to others around them and themselves. There is no doubt among some physicians that prescribed opiates for pain can be abused to a point where the user can be impaired. Some doctors on the other hand (those treating pain) say that if the opiates are prescribed carefully (whatever that means) and the patients are well supervised then there will be no impairment of these people. Most in industry don’t buy this however.

Reasonable suspicion

Employers still have to use the “reasonable suspicion” standard in order to require a random test for opiate impairment. Of course the problem with this standard is who decides what is reasonable suspicion of impairment? Both in aviation and nonaviation activities.

Setting rules for prescription drug use will be difficult at best and loaded with all sorts of problems. Prescription drugs are easily obtained for pain by doctors, for example. Several lawsuits have been brought by patients alleging that their doctor injured them during surgery because they were impaired by the use of prescription drugs. The major difficulty is proving impairment.

In the air carrier or maintenance activities business, training must be provided to those who are designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol or drug testing. The regulations require the designee must be provided a minimum of at least one hour of training on the physical, behavioral, speech, and performance indicators of probable drug or alcohol misuse and thus impairment. This one hour of training hardly qualifies one as an expert however.

There are now reports that some employers are attempting to get employees to disclose what prescription drugs they use on a regular basis. There are several cases working their way through the courts that are attempting to clarify this issue. The chief complaint is that this is an invasion of privacy that violates the Americans With Disabilities Act. Interestingly, privacy is the same excuse used by the Europeans against drug and alcohol testing which the FAA requires of aviation employees in safety-sensitive positions. However, the current cases are not involved directly with people in the transportation business.

Creating rules for the use of prescription drugs in the workplace will be difficult at best. How is impairment to be determined? Who is designated to make this decision? We all know that each prescription drug comes with a long laundry list of do not do’s including, not driving or operating machinery. Most pain medications warn against lightheadedness and dizziness that include a threat of bone fractures from falls. There is also the threat of drug interactions changing the way the drugs can work to your disadvantage. How all these matters can be resolved is a job for doctors. Indeed many of them disagree on the very issues at stake.

Anti-drug testing laws

Some cities prohibit certain types of drug testing and or make it more difficult to test employees. (Of course this does not apply in the federal arena of aviation). Most people are not aware of the fact that San Francisco, CA, and Boulder, CO, for example have anti-drug testing laws. In short, some states have anti-drug testing laws, some have restrictions, and others are either neutral or have a pro drug testing law. Take your choice.

Recent case

A recent Court of Appeals case dismissed a District Court case in Tennessee where the plaintiffs were former employees of Dura Automotive Systems, which makes glass window units for cars, trucks, and buses. They used the Americans with Disabilities Act (ADA) to challenge Dura’s drug testing policy which included testing for prescription pain drugs. Testing for these drugs and their use resulted in the employees’ termination as a result of their use of these drugs. They were perceived as being a threat to themselves and others on the job. Dura had a higher rate of workplace accidents than other plants and determined that this may be due to legal or illegal drug use. The drug policy tested for 12 substances including those found in legal prescription drugs. The company gave the affected employees an opportunity to switch to other alternatives. They did not accept this and therefore were terminated.

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