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Can You Be Fired for Taking Legal Drugs?

By Tanya Roth, Esq. | Last updated on

Employees are often subjected to drug tests, especially during the hiring process, to detect the presence of illegal drugs. But what happens if your prescription drugs cause a red flag to pop up on your test? Can you, should you, be fired for it? Plaintiffs who filed suits against the company Dura Automotive Systems say that is what happened to them.

Sue Bates is suing Dura Automotive after she was fired when a drug test revealed hydrocodone, according to the The New York Times. The painkiller, taken for back pain, was prescribed for Bates by her doctor. Bates says her firing was based on discrimination and invasion of privacy.

The Times reports that data is scarce, but a study by Quest Diagnostics, a company which administers workplace drug tests, shows the rate of employees testing positive for prescription opiates (like hydrocodone) rose by more than 40 percent from 2005 to 2009, The New York Times reports. The rate of positive tests rose by 18 percent last year alone.

In an effort to enforce a drug-free workplace, many employers are using drug testing that will detect legal drugs, as well as illegal substances. At Dura Automotive, for instance, tests identified drugs (including prescription drugs) as unsafe for the workplace if the the drug label included a warning against driving or operating machinery. This would obviously cover a wide range of legally prescribed and even over-the-counter drugs.

While this type of policy may make sense for transportation or factory workers, companies can still run into problems with the Americans with Disabilities Act. The Times reports that the ADA prohibits asking employees about prescription drugs unless they are seen acting in a way that compromises workplace safety or suggests they cannot perform their job for medical reasons.

State laws on employee drug testing vary from state to state. Several jurisdictions prohibit or strongly limit random drug testing. Others states give employers broad discretion and sometimes even give incentives like discounts on workers compensation premiums for employers who drug test their employees.

It seems that employers should focus less on the use of prescription drugs, than on the abuse of prescription drugs. Testing and/or discipline for cause is often a better route than a broader policy that can run afoul of the ADA or privacy laws, like the one at Dura Automotive. Employees should look for and adhere to a clear, consistent drug use and testing policy by employers. As the new testing rules for prescription drugs evolve, let's hope for a balancing act of safety with privacy, for both employers and employees.

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