USE OF A SPOUSE’S PRESCRIPTION MEDICATION

WILL YOUR EMPLOYEE LOSE HIS/HER JOB BECAUSE OF THIS?

Recently, this question has again been raised indicating that there is still some confusion or misunderstanding about this whole area. If an employee in a safety-sensitive (SS) position tests positive on a drug test and admits to using a spouse’s prescription medication, what happens?

In most cases, as an employer, you will not know that this is the explanation the employee provided to the medical review officer (MRO) to justify the positive result. The whole process of MRO review is generally transparent to the employer and is in place to prevent inappropriate disclosure to the employer of an employee’s legitimate use of medications. What this means is that if a drug test is reported as positive for a drug that could be attributed to a drug available through a medical prescription, the MRO would determine if the employee has a legitimate prescription for that particular drug and if he/she is using it appropriately. Furthermore, the MRO would make the determination that use of that drug (prescription medication) will not impact on safety as related to the employee’s functions. The reported outcome would be a negative result.


Where the problem raises its head is when the employee tells the MRO that he/she used a spouse’s or other family member’s prescription medication. Although many employers may consider this “no big deal” – after all, many people use others prescription drugs to self-medicate, DOT considers this inappropriate for someone in a SS position. In face, DOT’s guidance is that “an employee who acknowledges taking another individual’s controlled substance prescribed medication has admitted unauthorized use of a controlled substance and the result should be verified as positive.”


Back to the MRO and the verification process. There are those MRO’s who, after assuring themselves that the employee is telling the truth (e.g., brings in a bottle with the spouse’s name on it and for the same drug or drug metabolite; the laboratory results and levels are consistent with the drug in the prescription), may in fact downgrade the positive laboratory result to a negative. As an employer, you will not know this since the process is intentionally transparent as already mentioned. However, other MROs will call this result as positive since use of a spouse’s prescription medication is not a legitimate medical explanation as to why the employee tested positive. In a way, this is no different than an employee saying he/she unknowingly ate a marijuana brownie or a friend gave him/her a pill for this ferocious headache. The explanation may be true, but it is not a legitimate medical explanation. Legitimate in this case means the employee had a bona fide prescription written for him/her for a medication containing the drug for which the employee tested positive.


So, as an employer, if you don’t really know what is happening during the MRO verification process, what are you supposed to do? If you receive a positive result from the MRO and it is for use of a spouse’s prescription medication, you treat is as a DOT drug positive result and must follow all the regulatory requirements directed by DOT rules. Some employers have raised the issue of unfairness in this process – the employee can lose his/her job for simply taking a spouse’s medication; to many, this seems unfair. Speaking of fairness, employers need to remember that there are many individuals who use illegal drugs and use the excuse that it was from a spouse’s prescription – they might even have a phony prescription bottle handy to show to the MRO. Additionally, even if the situation is true (i.e., the employee did, in fact, use a spouse’s mediation) there are safety concerns that come into play. First, use of that medication may have subsequently impaired the employee and secondly, this may diminish the employee’s concern about the impact of the medication and may encourage further use in the future – definitely a safety risk.


Back to the original question: what should the employer do in this situation. Here are a couple of specific actions that would prevent potential problems described in the above scenario:
Check your written drug and alcohol policy. It probably does not address this issue at all. Your policy should include specific statements that use by SS personnel of a spouse’s or other family member’s prescription medication is prohibited by Federal regulations and will not be accepted as an explanation for a drug positive result. If you are updating your policy, make sure your employees see or get a copy of this update.


Determine what your company policy will be if the MRO notifies you that the positive result is for use of a spouse’s prescription medication. For example, your policy may be that anyone with a positive result is terminated. You may want to treat employees who used a spouse’s medication differently, i.e., not terminate them. You still have to follow DOT requirements, i.e., removal from SS functions, Substance Abuse Professional evaluation, follow-up testing, etc. Whatever you decide, it should be clearly spelled out in your policy. Note: you may want to indicate that an employee gets only one bite at the apple – after the first incident, the employee is specifically told that he/she can’t use a spouse’s prescription again to justify a drug positive result.


If an employer decides to go with a different policy for employees who used a spouse’s prescription, the employer will need to talk with the MRO. The MRO cannot disclose to the employer anything about the verification process. However, in the given situation, the MRO can ask the employee for permission to relate to the employer the fact that the result of a drug test is positive, but it is from use of a spouse’s prescription medication. An employee can always refuse to give permission or, based on company policy, may want this information forwarded to the employer.


Make sure there is a clear distinction between Federal test results and tests performed under company authority. Obviously, the above suggestions are geared toward DOT testing. Company authorized testing may be different, although the employer needs to keep in mind any state requirements related to drug testing.

Understand that the above actions are not regulatory requirements. However, inclusion in company drug and alcohol policy of the company’s position related to use of spousal medication is good practice; DOT does require a policy to describe prohibited behavior (See 382.601). Given the current state of the economy and the cost of firing, replacing, and training a new employee, employers may be more amenable in trying to keep a current employee on the rolls if that individual has been a productive and responsible worker. To that extent, the other suggestions are provided to help initiate a process in these specific cases.

Ask the Expert
Have a question for Don? E-mail him at Don.Shatinksy@concorde2000.com