Can I Lose a Job Offer If I Test Positive for Prescription Drugs?

Is taking over-the-counter drugs enough to make you lose a job offer?

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If you’ve applied for and been given a tentative job offer, pending a drug test, you may have mixed feelings if you take prescription medications. Though you’re happy at the prospect of a new job, you may also fear a mistake in the drug test or worry that you may lose your job offer if your prospective employer has a problem with the medication you’re taking.

Under federal law, you shouldn’t simply be barred from taking a certain medication if you take it under your doctor’s supervision. However, you may need to sacrifice some privacy and disclose some information about what you’re taking and why.

Employers Have Reasons to Be Concerned About Prescription Drug Use

Though prescription drug use is very common, for some, it results in more harm than good. Nearly 60% of American adults take at least one prescription drug. The popularity of prescription drug use by those 20 and older rose to 59% in 2012, up from 51% just 12 years earlier, reported the Washington Post. During the same period, the percentage of those using five or more prescription drugs nearly doubled, up to 15% from 8%.

Opioid use is also common. The American Academy of Pain Medicine estimates that about 100 million Americans suffer from chronic pain. Between 2011 and 2012, nearly 7% of adults reported using a prescription opioid painkiller in the prior 30 days, compared to 5% between 2003 and 2006, according to Time magazine. Comparing the period from 1999 to 2002 with that from 2011 to 2012, the number of people using prescription painkillers that were stronger than morphine increased from 17% to 37%. The federal Centers for Disease Control and Prevention found that physicians wrote 259 million prescriptions for pain medications in a single year, enough for every American adult to have a bottle of pills.

Employers may fear that a worker’s abilities will be impaired by prescription drug use, or, in the extreme, that prescription drug use could make them a danger to themselves or others. But negative employer decisions based on bias and fear of those who are disabled, or perceived as disabled, are illegal under the federal Americans With Disabilities Act (ADA) and similar state and District of Columbia laws.

Job Applicant Loses Job Offer Because of Legal Use of Prescription Medication

The federal Equal Employment Opportunity Commission (EEOC) has gotten involved in cases where those seeking and holding jobs report being discriminated against because of their use of prescription medications without being given an opportunity to explain why they are taking the prescriptions. One such case involves Happy Jack’s Casino in South Dakota.

According to a story in the Argus Leader, a lawsuit filed in September 2016 accused the casino owners of retracting a job offer and refusing to hire a job applicant, Kim Mullaney, who suffers from chronic pain. The EEOC stated that the casino’s actions violated the ADA because the owner, M.G. Oil, didn’t offer Mullaney an opportunity to prove that the drug she tested positive for (hydrocodone) was prescribed by a doctor for a medically recognized condition.

The EEOC claimed that Mullaney has a recognized disability (chronic back and neck pain) and a valid prescription to treat that condition. The EEOC argued that the casino’s blanket drug-testing rules covering legally prescribed medications violate the ADA. The complaint further alleged that the casino’s written policy requiring employees to disclose prescription and nonprescription drug use, without consideration of whether the inquiry is job-related and consistent with business necessity, also violates the ADA.

M.G. Oil, in its response to the complaint that it the following November, blamed the problem on the drug testing company it hired for the employee screenings, according to the Argus Leader. It admitted denying Mullaney a job after she failed a drug test. However, M.G. Oil said it refused to hire her because the company that tested her failed to check whether she had a valid prescription for the hydrocodone. M.G. Oil brought TestPoint Paramedical into the lawsuit, claiming that its failure to follow up on the test results was the true basis for the federal lawsuit.

M.G. Oil is sticking to its denial of liability, even though Mullaney told the company about her prescription and her chronic pain before she lost her job offer. The casino’s defense is that she never asserted that her pain constituted a disability or a serious job impairment.

The casino’s response alleged that it instructed those hired to do employee drug testing to investigate positive tests, which should include checking for a valid prescription. However, that didn’t happen in Mullaney’s case. After the EEOC filed its legal action, the casino claimed it received a notice from TestPoint that it did not follow this policy.

M.G. Oil contends that if the court finds that discrimination did occur, TestPoint should bear at least some of the blame. The testing company should pay some of the costs because it breached its contract with M.G. Oil. Patrick Heitkamp, TestPoint’s owner, denied the allegations when the newspaper contacted him. He said there was no signed, legal contract with M.G. Oil but otherwise declined to comment on the case.

Summing It Up

Under most circumstances, the ADA should protect a job applicant’s use of over-the-counter or prescription drugs to treat a disability.

  • Simply testing positive for these drugs shouldn’t be the basis for losing a job offer.
  • If such a drug appears in a test, an applicant should have the chance to show that he or she has a valid prescription for it.
  • If the prospective employer is truly concerned about the issue, the applicant may be asked for documentation from a treating physician, confirming that the person can perform the offered job with or without reasonable accommodation.
  • If the employee is hired and then starts abusing the medication, or if its side effects impair work performance or endanger the worker or others, the employer can ask for another medical evaluation.

If you have had problems obtaining a job or if you lost a job because drug test results revealed your use of prescription medications, contact our office so we can talk about your situation, about your employer’s legal obligations, and about how the law may apply to your situation.

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