Pharmacy Law:
Workplace Drug Testing
Gerald Gianutsos, PhD, JD
Dr. Gianutsos is Associate Professor of Pharmacology at the University of Connecticut School of Pharmacy in Storrs, CT.
Drug and alcohol abuse in the workplace is an issue of increasing concern. Employee drug abuse results in lost productivity due to absenteeism, impaired health, increased worker turnover, increased rates of workplace accidents, theft, poor job performance, and increased insurance costs. Studies suggest that the occasional drug user is late for work at a rate three times higher than other employees, absent from work for 8 or more days at a rate two and a half times that of the average worker, and incurs three times more medical
costs.1-3 Moreover, the drug user is involved in workplace accidents 3.6 times more frequently and is five times more likely to file for worker’s compensation. Estimates indicate that as many as 50% of workplace-related deaths may be associated with drug or alcohol use. Total economic costs related to substance abuse have been estimated to run as high as $100 billion per
year.1-3
While
precise numbers are difficult to arrive at, it is has been estimated that as much as 12% of the general workforce is affected by drug abuse. A survey conducted by the Department of Health and Human Services in 1997 reported that 6.3 million full-time workers admitted to using illegal drugs in the month preceding the survey. In fact, 70% of people who admitted using illegal drugs were employed full time, and most worked for small businesses (fewer than 25 employees). More significantly, the affected proportion may be as high as 15% for professionals in the health
industry.1
One response to these economic and social concerns is an increase in workplace drug testing. Surveys of employers report that 81% of major corporations and 67% of smaller (fewer than 500 workers) employers now utilize some form of drug testing for at least some classes of
employees.3 This is in contrast to the estimate that only 3% of Fortune 500 companies had drug testing policies as recently as 1983. An additional 8.5 million workers are subject to drug testing under federally mandated drug testing requirements aimed at achieving a drug-free
workplace.1,2
Employee drug testing raises a number of important issues that seek to balance the economic concerns of employers and the safety concerns of the public with the constitutionally protected privacy rights of citizens. In addition, employment decisions based on the results of drug tests may violate protections afforded to disabled individuals. This lesson will describe how drug tests in the workplace are used and will address these competing policy considerations. Pharmacists may find themselves on all sides of this issue, as employees subject to drug testing (particularly because of their access to drugs of abuse), as employers or managers potentially liable for the job performance of other employees, as professionals concerned with the health and safety of the public, and as sources of information on drug testing. The next section summarizes some of the technical issues involved in drug testing. The pharmacist needs to be aware of the methodologies employed and especially the potential problems of interpretation of the results. The subsequent section describes some of the legal controversies associated with drug testing in the workplace. These include constitutional issues protecting privacy and freedom from unreasonable searches, as well as special safeguards afforded to employees undergoing drug rehabilitation.
Clearly, one of the most important requirements for utilizing a drug test is a combination of accuracy and reliability. Available methods include simple kits based upon radioimmunoassay (eg, Abuscreen) or enzyme-multiplied immuno- assay technique (eg, EMIT) and more sophisticated methods utilizing high-performance liquid chromatography (HPLC) or gas chromatography-mass spectrometry (GC-MS). Pharmacists should be prepared to answer questions from the public about the accuracy of these different
methods.3,4 As a general rule, the simpler methods are used for initial screening purposes because of their relative simplicity and low cost along with a high degree of sensitivity in detecting broad groups of drugs. A negative result in a screening test does not necessarily mean the complete absence of drug in the urine. The drug must be present at a concentration at or above the threshold level of detection in order to be unearthed in the screening test. The threshold will vary with different methods and drug classes, but typically ranges from approximately 20 to 1,000
ng/mL.3-5 The more sophisticated measures are most often used as methods to confirm the presence of a drug where the screening test is positive. The GC-MS and related measures afford a high degree of selectivity in detecting individual agents rather than members of a drug class. Due to their cost and the need for a higher level of technical expertise, their use is usually limited to those situations where the screening test is positive. Since the screening tests will usually provide evidence of the presence of a drug from a class (eg, opiate) rather than a specific drug, use of the screening procedures alone would result in an unacceptably high rate of false-positives. The presence of a member of a class may not necessarily mean that a illegal substance has been used. Use of a confirmatory test, usually on a portion of the original sample that has been split in half, also minimizes the risk of administrative or clerical error.
Recognizing the dangers of adverse employment decisions based on false-positive testing, many states mandate the type of methodology that can be used in employment-related drug tests. For example, the State of Connecticut under its statute (C.G.S. section 31-51) mandates three separate tests if a urine sample is used to determine “an employee’s eligibility for promotion, additional compensation, transfer, termination, disciplinary, or other adverse personnel action.” The first test must utilize a “reliable methodology” and, if positive, must be confirmed by a separate and independent second test using a “reliable methodology.” If this test is also positive, the result must be confirmed by a third test utilizing GC-MS or another equally or more reliable method. Other states have similar requirements (for example, Arizona requires a GC-MS confirmation [A.R.S. section 23-493.03]).
The drug laboratory must also be reliable. Laboratories performing federally mandated drug testing are certified by the Substance Abuse and Mental Health Services Administration (SAMHSA).6 The lab must correctly identify and confirm the presence of specified drugs in 90% of submitted test samples in each of three cycles and must accurately measure (within 20%) the drug concentration in 80% of the samples to be certified. A single false-positive will disqualify the lab. At least one court has determined that a lab owes a duty to both the employer and employee to ensure that the results reported to the employer are accurate.
The presence of drugs can be detected using different fluids. As pharmacists involved in pharmacokinetic evaluation know, the most reliable data are obtained from sampling blood, but obtaining blood presents obvious difficulties for routine testing. Although breath, saliva, and hair can be used to detect drugs under certain circumstances, the most commonly used method for drug testing in the workplace is to obtain a urine sample. The FDA has also approved a sweat patch (PharmChek), which is applied to the skin to test for amphetamines, cocaine, and opiates. The patch has a waterproof adhesive and a tamper-proof feature so that it cannot be removed and reapplied. The patch can be worn up to 7 days and has the advantage of providing evidence of drug use during that
period.6 Hair tests are also becoming increasingly popular and are reportedly used in the casino industry. An advantage of testing hair is that drugs can be detected for very long periods, perhaps as long as 1 to 3 years, depending on hair length.
Pharmacists realize that a drug or its metabolite(s) may be excreted into the urine. Either form of the drug is, therefore, available for analysis. In some cases, it is preferable to look for the metabolite rather than the parent drug due to pharmacokinetic reasons. For example, the half-life of cocaine is approximately 1 hour, while its major metabolites benzylecgonine and ecgonine methyl ester have half-lives of 7.5 and 3.6 hours, respectively. These metabolites can be detected for up to 3 days after occasional use and for up to 8 days after repeated high
doses.4
Various methods are sometimes sought by subjects to avoid detection.4,5 Drinking a large volume of fluid or use of a diuretic could dilute the sample to a concentration undetectable by the screening procedure (ie, below the threshold). Often, urine specific gravity is measured as a marker for potential dilution. The sample could also be diluted after it is produced. For this reason, the sample might be taken in a bathroom without a sink and in which the water in the toilet tank has been colored. Addition of a strong acid or base to the sample may also interfere with the screening methodology. The urine pH may be measured to detect this adulteration. High salt concentrations may also interfere with some test methods. A colored liquid
(e.g., Mountain Dew) may also be substituted for authentic urine; measurement of creatinine is occasionally used to authenticate urine. A more subtle method of deception is the substitution of “clean” urine for the sample. A measurement of the urine temperature (which should be approximately body temperature) may detect a nonauthentic sample that has been brought into the collection venue, but a sample may also be smuggled in under the armpit or in a thermos in an attempt to thwart this discovery. In criminal proceedings, additional measures may be used to prevent attempts at avoidance, such as obtaining a sample from a subject who has stripped and is observed providing the sample, but this would be unduly intrusive in the routine employment situation.
An important factor that should be considered in interpreting the results of a drug test is the half-life of the drug, or more precisely, how the half-life is related to the duration of detection. Drugs from different chemical classes, and even different drugs within the same class, have dissimilar half-lives. A drug with a long half-life could be detected in the urine for a longer period of time than a drug with a shorter half-life. More frequent administration can also increase the detection period. There are many categories of drugs for which differences in the duration of detection has significant implications. Some examples include: barbiturates, marijuana, phencyclidine (PCP), alcohol, and
cocaine.3-5
Pharmacists are familiar with the fact that the barbiturates belong to classes with widely varying half- lives. While not ordinarily a major concern in testing for drugs of abuse, barbiturates serve as a good illustration of the variation in the duration of detection. For shorter- acting barbiturates (eg, secobarbital), the detection period is approximately 1 to 4 days. On the other hand, phenobarbital may be detected in the urine for up to 30 days. Patients on phenobarbital therapy for epilepsy need to be made aware of this factor if they are subject to a drug test where barbiturates might be one of the drugs being measured.
Marijuana is a more significant illustration. In a moderate smoker, the cannabinoids may be detected for 2 to 7 days, while a heavy marijuana smoker may continue to excrete measurable quantities of cannabinoids for as long as 30 days or more. Likewise, an intense PCP abuser may also show detectable urine levels for up to 30 days, while the detection period for a moderate abuser would normally be 2 to 7 days.
Alcohol represents the flip side of this problem. It is poorly detected in the urine, since most ethanol is rapidly metabolized to normal products of metabolism, and the period of detection would normally not exceed 1 hour. Cocaine is also rapidly metabolized, as discussed above, resulting in a relatively brief period of detection.
It is important to recognize that the presence of a drug in the urine is not necessarily directly related to performance on the job. It would be indicative of exposure to a drug at some time prior to the provision of the sample. However, it does not directly equate to how much of a given drug was taken. Not only is the amount unknown, but the period of exposure is similarly difficult to extrapolate. It is possible that the exposure to the drug occurred during the employee’s time off. Therefore, a positive drug test is not necessarily evidence of poor job performance nor an indicator of safety questions in the workplace. For these reasons, some object to drug testing as an inappropriate intrusion on workers. The American Civil Liberties Union (ACLU), for example, “opposes indiscriminate urine testing because the process is both unfair and unnecessary. It is unfair to force workers who are not even suspected of using drugs, and whose job performance is satisfactory, to ‘prove’ their innocence through a degrading and uncertain procedure that violates personal privacy. Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to evaluate or predict job performance.”
Private employers, on the other hand, have argued that even if positive drug tests provide evidence only of off-duty conduct, they have a legitimate interest in what their employees do during their off hours. Employers argue that evidence of drug abuse may contribute to a residual negative impact on the worker’s job performance and attendance record, increase health care costs, or otherwise affect the employer. This conflict is difficult to resolve. The interest in off-duty behavior often extends beyond the scope of illegal drugs as illustrated by the ban on smoking instituted by many employers.
A potentially troubling predicament is the possibility of producing a false-positive
result.3-5 A non-abused drug taken for legitimate purposes may occasionally interfere with a testing method, especially in a screening procedure, and result in an incorrect adverse employment decision. Pharmacists should be prepared to offer advice and warnings to patients who may be subject to a drug test. For example, some decongestants, notably sympathomimetics, such as ephedrine, phenylpropanolamine, phentermine, and labetalol, may generate a false-positive result in screening tests for amphetamines. The monoamine oxidase inhibitor selegiline, used as an anti-Parkinson drug, is partially metabolized to l-amphetamine and could produce a false-positive for amphetamine under some circumstances. Diphenhydramine and diphenoxylate have been reported to produce a false-positive for opiates. Dextromethorphan has been reported to produce false-positive results for both opiates and PCP. Ibuprofen may interfere with tests for tetrahydrocannabinol (THC). Poppy seeds contain both morphine and codeine and ingestion of baked goods containing poppy seeds could lead to excretion of these and related alkaloids and interference with drug tests for opiates. (One may recall an episode of Seinfeld where this happened to Elaine.) It has also been reported that hemp seed oil, a dietary supplement used as a source of essential fatty acids, may provide sufficient cannabinoids to produce a false-positive for marijuana. Although generally considered unlikely, controversy exists whether breathing in “secondhand” marijuana smoke will result in sufficient cannabinoids being absorbed and excreted to show up on a urine test. Nevertheless, a person subject to a drug test should be alert to this possibility in order to adjust his or her behavior accordingly.
This is by no means an exhaustive list, nor will the compounds listed above always produce false-positive results on all tests. However, the pharmacist possesses sufficient knowledge about drugs to make predictions on potential problems that may occur in the interpretation of test results and to provide adequate precautions to workers.
An interesting dilemma is raised by tests for anabolic steroids. Although steroids are not part of routine tests of employees, they are abused by many athletes and are banned in the athletic “workplace.” While the detection of a synthetic anabolic steroid in the urine would likely suggest the presence of a banned substance, this would not be the case if the naturally occurring substance, testosterone, was detected in the urine. The test cannot be based upon the presence or absence of testosterone, since this is naturally found in the urine, but rather on detecting it in a concentration above the normal range. Nevertheless, a “normal” range can be exceeded naturally due to many physiological and pathological causes, and an individual could have abnormally high concentrations of testosterone unrelated to abuse of exogenous sources. (This is also true in the case of growth hormone, another substance abused by athletes.) For this reason, testosterone concentrations are measured along with its naturally occurring inactive epimer, epitestosterone. The normal range of testosterone to epitestosterone (T/E) is 1:1; the National Collegiate Athletic Association and the International Olympic Committee, for example, consider a T/E ratio of 6:1 or greater to be evidence of testosterone abuse. Pharmacists should also recognize that the natural dietary supplement dehydroepiandrosterone (DHEA) may also elevate T/E ratios, but it is improbable that it would result in the critical 6:1 level.
The contrasting problem is the deliberate attempt to avoid a positive result by an individual who knows that he or she would otherwise fail a drug test. As noted above, adding foreign substances to the urine sample may interfere with some drug tests and result in a false- negative result, notably in the screening procedures. Many of these approaches produce dramatic changes in the sample (eg, pH, color, aroma, etc) and are easily detectable. On occasion, the pharmacist may be approached by an individual looking for a masking agent—a product that can be taken orally and, via excretion, interfere with the detection of a suspect material in the
urine.3,4 Folklore suggests that different substances may act as masking agents, including vitamin C, vinegar, lecithin, aspirin, and the herb golden seal. There is little convincing evidence that any of these substances are truly effective for this purpose.
Clearly, providing a urine sample for testing presents some problems in interpretation, and care must be exercised in the use of these tests for making employment decisions. However, even if these technical obstacles can be overcome, the use of drug testing in the workplace raises other significant legal and social considerations.
Employees may wonder whether there are legal restrictions on the employer’s ability to subject a worker to a drug test. Unfortunately, there is no simple answer to this question. It depends on the nature of the employer-employee relationship and the type of job being performed.
The U.S. Constitution provides for individual freedoms, but these are primarily against interference from actions by the federal or state government. Simply stated, this means that public employees, as direct beneficiaries of constitutional protection, generally have a greater degree of protection than private employees. It should be noted, however, that this does not mean that public employees are never subject to drug testing, nor does it mean that private employees have no protection. The consent to drug testing may also be subject to modifications resulting from collective bargaining agreements. Finally, state statutes may provide additional protection for private employees.
Most of the challenges to drug testing have been based upon the rights granted by the Fourth Amendment to the U.S.
Constitution.7 This amendment applies in two ways. First, the Fourth Amendment protects against unreasonable search and seizure. The initial question that needs to be resolved is whether the collection of a test sample represents a type of search or seizure. Many civil libertarians would argue that the taking of an involuntary blood sample would be an intrusive search and seizure. Less obvious is the collection of a urine sample. Some have argued that a urine sample does not involve a search and seizure since there is no touching or invasion of the body, but merely the analysis of a waste
product.7 The courts, however, have not been persuaded by this argument and have generally made no distinction between a blood or urine sample, likening the collection process to a strip search.
While a urine sample may represent a search and seizure, it would only be prohibited if it is unreasonable. An employer wishing to enforce a policy of compulsory drug testing might attempt to collect samples under a number of different circumstances. The degree of intrusiveness of a policy would differ as these situations change and each may require greater or lesser levels of justification in order to pass legal
scrutiny.2,7 Usually one of four policies would be enacted by an employer: incident testing, probable cause, routine scheduled testing, or random
screening.2,3
Incident testing might mandate a drug test after a job-related accident and is required, for example, of railway workers among others. This type of policy requires the least amount of justification, since it is directly related to an adverse event in the workplace.
Probable cause is based on circumstances or observed behavior (e.g., excessive absenteeism, personality changes, signs of intoxication). It is similar to incident testing except that it allows the employer greater discretion than in the case of a discrete event like an accident and is used by roughly three fourths of employers in the private
sector.2 It must be based upon objective facts that would lead a reasonable person to conclude that there is drug use or impaired performance.
Routine scheduled testing identifies a target population to be tested usually with notice. It may be performed in conjunction with another scheduled event
(e.g., an annual physical examination where the employee would expect to give a urine sample).
Random screening would require employees to submit to unannounced testing. This is considered the most intrusive policy and requires the highest level of justification. Usually, this is reserved for occupations in very safety-sensitive industries or occupations involving national security. For example, the U.S. Navy conducts random drug testing. Different employees within the same organization may come under different policies. For example, it would be easier to justify routine testing of pharmacists who have unrestricted access to dangerous abused drugs than it would be to justify routine testing of clerical support staff.
A complementary constitutional protection is the notion of privacy. Although privacy is not explicitly enumerated in the Fourth Amendment, it has been recognized as a common law right for over 100 years. Privacy can include many rights, but, in the context of drug testing, it includes both bodily autonomy and informational
privacy.2 Bodily autonomy has been applied in a number of diverse medical situations, including abortion and end-of-life decision making where one has the freedom to exert control over one’s body and to be free from unwanted physical intrusion. Few would argue that the function of urination is a private act. Indeed, the U.S. Supreme Court in deciding on the suitability of obtaining a urine sample for drug testing has stated that:
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed its performance in public is generally prohibited by law as well as social
custom.8
Urine testing also impinges on informational privacy. The specimen could be used to reveal a wide variety of private information, including the presence of diseases (eg, diabetes), pregnancy, and the presence of prescription or over-the-counter drugs, which the employee does not want the employer to know about. Finally, the presence of a drug in the urine does not necessarily indicate recent on-the-job use and may, therefore, provide the employer with information about behavior occurring during nonworking hours. In fact, a positive drug test may indicate an abuse problem rather than any impairment of job performance.
The privacy right of employees does not bar all suspicionless searches. The government may have an overriding interest that outweighs the privacy right of the individual. A court would conduct a balancing test, which measures the government’s interest against the degree of intrusiveness of the activity. An important component in the analysis is the nature of the job. Drug testing has commonly been permitted in safety-sensitive occupations where the drug could impair judgment or performance and endanger the general public or other employees. This would include, among others, law enforcement personnel, air traffic controllers, and firefighters.
The U.S. Supreme Court applied this reasoning in Skinner v. Railway Labor
Association.8 In this case, railway workers challenged a regulation that required railroads to conduct blood and urine drug tests after certain types of accidents. While acknowledging the employee’s privacy concerns, the Court noted that the safety needs of both the employees and the general public justified a departure from the usual warrant and probable cause requirements. The Court stated that:
The reason is obvious. An idle locomotive, sitting in the round-house, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs . . . Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences . . . By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty.
Courts have also reasoned that health care workers, including physicians, nurses, and pharmacists, may fall within the scope of such safety-sensitive
occupations.2 On the other hand, courts have found that not all occupations fall under this standard. For example, a blanket requirement that all probationary school teachers submit to urine testing as a condition of tenure was not justified (absent probable cause). The court distinguished teaching from other occupations involved in public safety. While the potential safety of school children was raised by the school district, the court was not persuaded that safety was sufficiently compromised to outweigh the constitutional
concerns.2
Courts have also determined that workers in highly regulated industries, such as health care professionals and workers in the gaming industry, have a lessened expectation of (and therefore less right to) privacy. Here, the reasoning is that these workers have voluntarily subjected themselves to licensing and regulation and this could include drug testing.
As stated earlier, private employers are not subject to the constraints of the Fourth Amendment and have even greater latitude to conduct drug tests of their employees. However, private employees are afforded some degree of protection. One important distinction is between current employees and job applicants for future positions. A current employee may have a “property right” to his or her job and is provided with economic protection. On the other hand, job applicants do not have the same vested right as current
employees,7 and many employers require preemployment physical examinations, which include blood and urine testing. Because of the absence of the vested right, job applicants may be thought of as having waived any privacy concerns as a condition of obtaining employment. Employers, however, need to exercise care by giving notice of the intent to drug test and to develop a policy that uniformly tests all applicants or at least all applicants within certain job categories. Similarly, the employer needs to have methods in place to ensure confidentiality of the results in order to avoid charges of defamation or invasion of privacy. Pharmacists need to counsel patients who may be applying for a job of the potential that legal prescription drugs may give a false-positive on a drug test.
Most states have enacted statutes that provide protection to public and private employees subject to drug testing. These laws have addressed issues including drug testing procedures, testing of job applicants, and standards for testing existing employees. The states differ markedly in the type and scope of laws dealing with these different
issues.6 The Connecticut statute (C.G.S. section 31-51) illustrates some of the features that might be implemented by the different states. Connecticut permits a urinalysis drug test of employees only if the employer has a “reasonable suspicion” that the employee is under the influence of a drug or alcohol that adversely affects job performance. Thus, an employer may not ordinarily institute a random drug testing program in Connecticut but may only act if there is a reasonable inference of current drug use. However, this restriction on random testing does not apply to employees in occupations designated as “high risk” or “safety sensitive.” These activities are defined as those where there is a “clearly significant life-threatening danger” to the employee, his fellow employees, or the general public, which requires “the exercise of discriminating judgment or high degree of care and caution.” Interestingly, the statute also does not restrict random drug testing of employees involved in activities related to pari-mutuel wagering (eg, jockeys, jai alai players). In addition, the statute prohibits the employer from directly observing the employee during the process of producing the urine sample.
Arizona also permits drug testing where it is “consistent with business necessity” (A.R.S. section 23-493.04[B]). Business necessity includes investigation of possible individual employee impairment, investigation of workplace accidents, maintenance of workplace productivity, and maintenance of safety of employees, customers, or the public at large. Employers in Arizona should also understand that the testing by an employer is deemed work time for the purposes of compensation and benefits for current employees (A.R.S. sections 23-493.02).
The Connecticut statute also addresses another potential concern of employees. An employee might voluntarily submit to a urinalysis to detect exposure to toxic substances found in the workplace in order to ensure that he or she is safeguarded from occupational illness. Could the employer, who has been voluntarily supplied with a urine sample by the employee, also test the sample for drugs? The statute indicates that the tests are limited to specific substances expressly identified in the employee’s consent form.
Additional protection is provided to certain employees under the
ADA.9 Pharmacists need to be aware of the scope of this law in order to properly counsel patients who are undergoing drug rehabilitation. The ADA defines a handicapped individual as one who “has a physical or mental impairment that substantially limits a major life activity of the individual.” These impairments encompass a broad range of physical and psychological ailments, but must be of sufficient severity to limit a major life activity, including employment. Under certain circumstances, addiction is treated as a disability.
The law makes an important critical distinction between persons who are in the process of rehabilitation and those who are recreational drug users. The former are protected under the terms of the ADA, and dismissal from employment solely on the basis of a positive drug test raises the possibility of liability due to a prohibited discriminatory action. Protected individuals include those currently enrolled in, or who have successfully completed a supervised rehabilitation program, and former drug users who are no longer using drugs. Current users are, however, distinguished from rehabilitated former addicts. The ADA specifically states that an employee or applicant who is currently engaged in the illegal use of drugs is excluded from the definition of a qualified individual with a disability. Pharmacists participating in a rehabilitation team should be aware of the status of these patients under the ADA. The distinction between recreational users and patients undergoing rehabilitation provides an incentive for addicts to enter treatment programs while denying protection to those who are unwilling to seek help. Therefore, refusing employment to an individual on the basis of past drug use in the absence of evidence of current drug use would normally be prohibited. Furthermore, the ADA requires that employers “accommodate” individuals with a handicap and the employer may wish to offer opportunities for rehabilitation and assistance instead of dismissal for a drug user. Alcoholism, however, is considered to be a disability under the ADA and accommodation is ordinarily required.
However, as with the privacy issue, there are limitations on the protection where there are concerns about public safety. The intent of the law is not to force employers to hire drug-dependent persons in jobs for which they are unsuited. Where the employee drug or alcohol use constitutes a threat to property or the health and safety of others, or where the drug use would prevent the employee from performing the duties of the job, the protections of the ADA would not apply. A clear- cut example of this standard can be seen in a
case10 brought under the Rehabilitation Act, the forerunner to the ADA. The court reasoned that the regulation, which mandated blood and urine drug tests and possible disciplinary action for aviation workers, did not violate the protections provided by the Act. The court indicated that freedom from drug effects is a proper standard governing critical jobs. Analogous reasoning has been applied in cases involving law enforcement personnel, ambulance drivers, and in railroad workers where there is mandatory testing after train accidents. Similarly, if the drug or alcohol use can be shown to interfere with the performance of the job, the employer is not obligated to retain the employee. Some examples include cases where law enforcement personnel, who have been found with traces of abused substances, have been terminated. The reasoning here is that the drugs could interfere with their judgment in an emergency situation, and also that the use of illegal drugs casts doubt on the integrity of the law enforcement workforce.
However, drug use is not necessarily a permissible disqualification in all safety-sensitive job categories. In one example, a nurse applying for a job in a Veterans Administration (VA) hospital intensive care unit was denied employment because of a history of drug abuse and because easy access to narcotics was part of the
job.11 The court ruled that the VA was required to provide an accommodation for a handicapped individual, in this case one who had undergone rehabilitation. Since the task of administering narcotics to patients represented only a small (estimated at 2%) part of the nurse’s job, it could be assigned to another nurse without undue hardship.
Finally, another important consideration is the timing of the drug test, or any other medical test for that matter. The prospective employer cannot inquire about the applicant’s medical or physical condition before making an offer to the job applicant. The employer, however, can make a conditional job offer and can require a medical examination as a condition of employment, as long as the employer conducts similar examinations of all applicants in similar or comparable job classifications. A drug test, however, is not considered a medical examination under the statute, although alcohol testing is considered such a medical examination. An employer, therefore, could require a drug test before offering a job, but there are some practical limitations to this approach. If the test is positive, it could potentially be due to treatment of a pre-existing medical condition or a positive result in a person undergoing rehabilitation, and both of these conditions are protected under the ADA. The employer may not ordinarily ask about either of these situations before tendering the job offer, and denial of a job to an individual under these circumstances creates potential liability for the employer. The Equal Employment Opportunity Commission, which administers compliance with the ADA, permits an employer to make a pre-offer inquiry to the potential employee if a positive drug test is recorded. As a practical matter, however, most employers would limit drug tests to applicants receiving a conditional offer of employment.
The ADA attempts to provide a balance between legitimate interest of employers in a safe and drug-free workplace and those of the employee. Complex issues arise over the distinction between current and rehabilitated users and the need, under certain circumstances, for the employer to provide an accommodation for a handicapped individual.
As concerns about drug use in the workplace continue to grow, one response has been an expansion in the use of drug testing in the workplace to uncover these users. However, questions about the suitability of this approach persist. The analytical procedures have limitations, leading to the potential for both false-positive and false-negative results. Even if these limitations could be overcome, disputes arise about the appropriateness of subjecting employees to these procedures. Private and especially public employees are afforded limited protection by federal and state laws that partially restrict an employer’s right to demand drug tests. However, these individual rights may be offset by employer and societal concerns about job performance and safety. Pharmacists are uniquely qualified to counsel patients about drug testing issues in the workplace, and, with an awareness of the underlying issues and concerns, can serve as a valuable resource.
1. Malatestinic WN, Jorgenson, JA. Dealing with substance abuse in the workplace. Hosp. Pharmacy 1991; 26:10-105.
2. Devon D. Drug testing of health care workers: Toward a coherent policy. Am. J. Law & Med. 1997; 23: 399-448.
3. Rupp MT. What the pharmacist should know about urine testing in the workplace. Amer. Pharmacy 1988; NS28(7): 19-28.
4. Eskridge KD, Guthrie,SK. Clinical issues associated with urine testing of substance of abuse. Pharmacotherapy 1997; 17: 497-510.
5. Liska, K. Drugs and the Human Body, 4th ed. Philadelphia: Macmillan Publishing 1994; 381-396.
6. Snyder JW, Klees JE. Drug testing programs in government agencies and private workplaces. Occup. Med. 1996; 11: 87-100.
7. Simonsmeier LM, Fink JL III. Legal implications of drug testing in the workplace. Amer. Pharmacy 1988; NS28(7) 30-37.
8. Skinner v. Railway Labor Association, 489 U.S. 602, 617 109 S.Ct 1402, 1413 (1989) (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (CA5 1987)).
9. Title 42 U.S.C. The Public Health and Welfare, Chapter 126. Equal Opportunity for Individuals with Disabilities
10. American Federation of Government Employees v. Dole, 670 F.Supp. 445 (D.D.C. 1987); aff’d American Federation of Government Employees v. Skinner 885 F.2d 884 (D.C. Cir. 1989).
11. Wallace v. Veteran’s Administration, 683 F.Supp. 758 (D.Kan. 1988).
Temple University School of Pharmacy is approved by the American Council on Pharmaceutical Education (ACPE) as a provider of continuing pharmaceutical education. Its CE programs are developed in accordance with the “Criteria for Quality and Interpretive Guidelines” of
ACPE. This program is acceptable for 2.0 hours of Continuing Education Credits (0.2
CEU) through August 31, 2003. ACPE Pgm I.D. 057-999-00-003-H03.
