Construction Law

Does Your Company Have a Prescription Drug Policy? featured image

Does Your Company Have a Prescription Drug Policy?

Certain topics can be sensitive in the workplace. Although you want to respect an employee’s privacy regarding medical issues, contractors also have to ensure that they are providing their workforce with a safe environment. This can be a difficult balancing act for employers, requiring a great deal of attention to detail and strong company policies within your employee handbook. For this reason, employers should consult a construction lawyer in Franklin, TN, for all of their legal needs. 

In this article, a construction attorney will discuss how construction employers can reduce liability by incorporating policies related to prescription drug use into their employee handbooks. At Cotney Attorneys & Consultants, a construction law attorney in Franklin, TN, can assist construction firms and professionals by drafting an ironclad employee handbook that protects their best interests. If you have a legal dispute that leads to the need for a litigation lawyer, our team of experienced legal professionals have you covered.  

Prescription Medications and Construction

Drug use in any workplace creates tons of liability issues. When you add the fact that construction work involves operating heavy machinery in tight spaces and dealing with a myriad of other safety hazards, it’s easy to see how these liability issues can go through the roof. As the construction industry is currently experiencing an opioid crisis, employers must be proactive and ensure that no employee on their jobsite is abusing prescription medications in the workplace. Remember, a contractor may be considered liable for any accidents that occur on the jobsite. For example, without a policy in place, if an impaired worker creates a serious accident while operating equipment, this could result in the contractor being involved in a serious litigation issue. 

Related: The Opioid Crisis and the Construction Industry 

Disclosure of Prescription Drug Use

Discussing an employee’s medical history with them can present even more liability issues when discretion isn’t properly utilized. Most employers will reserve these conversations strictly for employees in safety-sensitive positions. If an employee’s essential job tasks require them to operate heavy machinery or perform other safety-sensitive job tasks, an employer generally has more of a legal right to request additional information about their medical history. This is because:

  • Prescription drug use can impact a worker’s ability to perform their job tasks 
  • The use of the drug could put other employees at risk

Although disclosure of prescription drug use is an important issue for a construction employer to consider exploring, it’s critical that construction employers speak with a construction attorney in Brentwood, TN, before they put any type of prescription drug policy into writing or begin discussing an employee’s medical history with them. 

Drug Testing Policies

Many employers would prefer to avoid having conversations about an employee’s medical history altogether. They instead institute drug testing policies to detect any use of an illegal substance. This can include applicancy testing, random testing, for-cause testing, and post-accident testing. In theory, random drug testing is a good way for employees and employers to have a conversation in regard to medical history because it’s the ideal time for an employee taking prescription drugs to come forward. However, random testing must truly be random for this policy to work effectively and avoid any liability.  

Although the detection of prohibited substances during testing will result in some form of punishment, including termination of employment, drug testing involving prescription drugs is a more complicated issue than prohibited substances as these drugs are legally prescribed. In many of these cases, a violation can be determined by the level of the substance detected in the test, including: 

  • If the employee is taking a prescription drug and there is just a small trace of the drug in the test, chances are the employee wasn’t violating company policy. 
  • If the employee has a high level of a substance detectable in the test, the employee may have been under the influence during their shift. 

It’s important that contractors utilize a drug test provider for their drug tests. A drug test provider can determine if the detectable amount of the drug in the test establishes that the worker was under the influence during working hours.  

Related: OSHA Guidance On Incentive, Disciplinary, and Drug Testing Programs

Should You Test Workers in Dangerous Positions More Often? 

An employer may opt to require workers in safety-sensitive positions to be tested more frequently than other employees that are not engaged in high-risk tasks on the jobsite. In other words, for workers in safety-sensitive positions, there can be a reasonable expectation that they will be required to take random tests more frequently because of the nature of their position and the legitimate concern for the safety of the rest of the workforce. Although there are recent cases that support employers doing this, before you create such a policy, it’s important that employers speak with a construction law attorney in Brentwood, TN. Moreover, the employer will need to communicate to employees in these positions the reasonable expectations of these tests. 

For-Cause Testing 

If an employer suspects that an employee is under the influence of drugs or alcohol, the employer has a right to require the employee to undergo a for-cause test if there is a clearly outlined drug testing policy in place. Similarly, any employee involved in an accident on the jobsite that results in significant property damage or an injured worker should be required to undergo a drug test. It’s critical that employers have an impartial system when requiring drug testing in the workplace, including in for-cause testing scenarios. 

As long as employers are proactive and clearly communicate these policies to their workforce (and have the policies in writing in their handbook), issues with prescription drug use can be mitigated before they become a real problem. It’s also critical that employers maintain an open line of communication with their attorney to ensure that they are complying with the law. Many issues that lead to litigation could have been prevented if an employer was more proactive in discussing concerns with an attorney before they became an issue. 

If you would like to speak with a construction lawyer in Franklin, TN, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.