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

Employer’s 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 • 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 or, 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 Patrick Flanagan pflanagan@cshlaw.com 2

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 of 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. Patrick Flanagan pflanagan@cshlaw.com 3

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? Patrick Flanagan pflanagan@cshlaw.com 4

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 Procedures and tests employers may require prior to making an offer: ► 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) Patrick Flanagan pflanagan@cshlaw.com 5

After the Offer…. It’s Your Window of 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 or physical or mental health? Patrick Flanagan pflanagan@cshlaw.com 6

Medical Examination-Cont. ► 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? Patrick Flanagan pflanagan@cshlaw.com Drug Testing If pre-employment drug test reveals the presence of an opioid 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 of the job with or without accommodations? ► Can the employee do the job without posing a direct threat due to a medical condition? Patrick Flanagan pflanagan@cshlaw.com 7

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.) Patrick Flanagan pflanagan@cshlaw.com 8

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. Patrick Flanagan pflanagan@cshlaw.com 9

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. Patrick Flanagan pflanagan@cshlaw.com 10