Meat+Poultry - November 2018 - 76

LABOR

Prescription policy pitfalls
In a recent report on Equal Employment Opportunity Commission (EEOC)
legal actions, it was noted that the
agency had filed suit alleging American
with Disabilities Act (ADA) discrimination by an employer for the failure to
hire an individual who informed his
new employer that he was using Suboxone, an opioid. Suboxone is typically
prescribed to help recovering drug
addicts reduce their withdrawal symptoms. The defendant in the case settled
the claim for $70,000. The EEOC concluded that the company failed to engage in an individualized assessment to
determine whether the applicant could
perform his job while using Suboxone.
The mere fact that the EEOC itself sued
an employer over this issue is cause for
concern among employers.
BEST PRACTICES
Since the EEOC takes the position that
employers are not permitted to require
employees or applicants to reveal the
use of prescription medication, some
employers "encourage" employees to
report opioid usage to a plant nurse or
other medical personnel. If a company
has or adopts such a policy, due to
legitimate safety concerns, more
widespread dissemination of the need
for voluntary reporting would likely
result in the type of information sought.

Of course, once reported, the employer
would have to go through the ADA
interactive process to consider whether
a non-opioid drug might be substituted
to address the disability. This would
entail contact between the company's
medical review officer and the
employee's or applicant's prescribing
physician. If a change to a non-opioid
medication is not feasible, then an
employer would have to consider if
any reasonable accommodation could
be made. If the job at issue could
be considered safety sensitive, the
employer could take the position that
it would be dangerous to have a person
that is routinely using opioids on such
a job. If the issue is with a current
employee, reasonable accommodation
would require that the employee be
considered for any open job where the
use of prescription opioids does not
pose a danger.
With regard to applicants, the
procedure would be similar, except
that an employer would not be required
to accommodate by offering them an
alternative open position. However,
if their treating physician refused
to try to substitute a non-opioid
medication for treatment, the employer
would then have to rely upon its
own medical expert's opinion that
the use of an opioid posed a risk of
harm to the applicant and potentially
others. It would be the "direct threat"
defense under the Americans with

What are
opioids?
Opioids is a term used for
the entire family of opiate
drugs including natural,
synthetic and semisynthetic. They include:
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*
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Heroin
Buprenorphine
Codeine
Fentanyl
Hydrocodone
Hydromorphone
Meperidine
Methadone
Morphine
Oxycodone

Disabilities Act Amendments Act
(ADAAA) for refusing to hire the
applicant. The safety risks would have
to be well documented and not be
mere speculation.
Cautious employers will want to
carefully monitor how the EEOC, as
well as state law, treats prescription
opioids for possible reasonable
accommodation purposes. It is a
rapidly changing area that will likely
place greater burdens on employers.
RICHARD ALANIZ | meatpoultry@sosland.com

MEAT+ POULTRY | 11.18 | www.meatpoultry.com

Steve Heap - stock.adobe.com

The mere fact that the EEOC itself
sued an employer over this issue is
cause for concern among employers.

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Meat+Poultry - November 2018

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