Affidavit: Healthcare and the Law - The Effect of the Opioid Crisis on Business/The Benefits and Legal Risks of Increased Drug Testing

Contributor: Lisa W. Clark, JD’89 (with significant help from Samantha Dalmass, Legal Intern)
To learn more about Lisa, click here.

 

The opioid crisis has grabbed headlines due to its horrific effects on the lives of addicts and their families, friends and communities. Less well-understood is the impact of the crisis on employers, yet they will have to be part of the solution including through increased drug testing. 

Opioids are defined as a class of drug typically used for pain relief, are sometimes called narcotics, and include common prescription painkillers used by 95 million Americans in the last year such as oxycodone (Oxycontin), hydrocodone (Vicodin), and morphine. Other opioids include heroin, which was made illegal in 1924, less than thirty years after it was initially produced for commercial sale, as well as the synthetic opioid pain reliever Fentanyl, which is 50 to 100 times more potent than morphine. Over two million Americans are estimated to be dependent on these highly addictive drugs.

The opioid epidemic is considered to be one of the deadliest in U.S. history.  Since 1999 the number of deaths from prescription opioids and heroin has more than quadrupled. The estimates for opioid overdose deaths in 2016 alone range between 59,000 – 65,000 in 2016, up about 19 per cent from 2015. Drug overdoses are now the leading cause of death among Americans under 50 years old, and as the death tolls continue to climb, federal and state policy makers are struggling to come up with an effective response to stem the tide of this epidemic.

Various initiatives have been introduced to combat the crisis by different levels of government. Some state lawmakers are considering legislation that would impose a tax on prescription opioids. Other states have brought lawsuits against different manufacturers of prescription opioids. Forty-nine states and the District of Columbia have already enacted legislation authorizing prescription drug monitoring programs (PDMPs). States have also enacted legislation or promulgated regulations that aim to limit the duration or supply of opioids that physicians may prescribe for treating acute pain. A number of federal initiatives have also been introduced, although there is still no consensus at the national level on workable solutions or funding. 

While it is still too early to determine how whether these initiatives will be successful, one thing is certain: employers will be footing part of the bill.  Currently companies spend, on average, about eight to ten percent of their annual operating budget on providing health benefits and health insurance coverage to employees. Employing individuals who use opioids recreationally or suffer from addiction is twice as costly as employing non-users, as the annual amount paid by employers jumps from around $10,000 in health care expenses per employee to more than $19,000 in annual health care expenses for employees using opiates. Some businesses also incur additional costs outside of the standard health benefits packages offered to their workers because opioids account for a quarter of workers’ compensation prescription drug costs. Employees who are prescribed opioids for injuries incurred at work are also more likely to develop dependency issues or other side effects, and those who take opioids for a prolonged period of time may not return to work at all.  The financial burden on employers is further compounded by decreased worker productivity, increased absenteeism, and higher turnover. Workers dependent on opioids are also much less likely to maintain a steady job, as some studies indicate drug users are more likely than the general population to have had three or more jobs in the last year. And while many employees struggling with addiction or opioid dependence may be dependable workers, their drug use may negatively impact their peers in the workplace.

With so much at risk, businesses and employers across the country are looking for ways to immunize their businesses from the crippling effects of this epidemic, but maintaining a drug-free work environment and providing support for employees who may be at risk is no small feat. Drug testing is one part of the solution.  While required drug-testing might discourage opioid use, many companies abstain from administering drug tests, because they are reluctant to expose themselves to potential invasion of privacy claims. Even those who do test for drugs amongst employees and applicants commonly fall short of actually identifying an existing problem or an at-risk employee because most periodic drug tests administered in the workplace do not currently test for prescription opioids. And of course drug testing can be very costly. 

Until recently, the norm among private companies and federal agencies that administer drug tests has been to issue a standard five-panel drug test, which tests for commonly used substances such as marijuana, cocaine, amphetamines, phencyclidine, and certain opiates such as morphine and heroin. Finally, recognizing that these conventional drug tests fail to test for the prescription painkillers at the heart of the opioid crisis, the Department of Health and Human Services recently revised the Mandatory Guidelines for Federal Workplace Drug Testing Programs for urine testing which, effective October 2017, will require federal agencies to test for prescription opioids such as oxycodone and hydrocodone.  Private employers who are not doing so already are likely to follow suit.

The benefits of drug testing must be evaluated against the legal risks and issues. Businesses should be aware of applicable legal standards before implementing mandatory drug-testing programs to avoid liability, especially since employees with a history of drug addiction or alcoholism are protected from discrimination in the workplace under the Americans with Disabilities Act (ADA). Testing for prescription opioids may also prove problematic because a private employer cannot implement policies that would restrict its employees’ access to appropriate medical care and legal prescription drug use.  Working through solutions to the opioid crisis, including through increased drug testing, are not simple, but for the nation as a whole the costs of doing nothing may be worse.  

 

Contact Lisa at: LWClark@duanemorris.com

 

Disclaimer: This article is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this article are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.