WESTFIELD – The Greater Westfield Chamber of Commerce held the first of three workshops exploring the impact of prescription drug use in the workplace on Monday morning at the Holiday Inn Express.
Karina L. Schrengohst, Esq. of the Royal, P.C. law firm in Northampton spoke about some of the difficulties in hiring and managing employees that take painkillers and medical marijuana for underlying medical conditions, and their protection under the Americans with Disabilities Act (ADA).
Schrengohst recommended creating, implementing, and enforcing drug-free workplace policies, and using drug testing in the workplace. She said prescription drug use is the nation’s fastest growing drug problem, and the epidemic of drug use and abuse impacts the workplace.
Some of the possible impacts include absenteeism, tardiness, a decline in productivity and an increase in workplace accidents and injuries. However, she said, there are not a lot of statistics to base this on.
“There is a place for pain relieving medication for some people,” Schreingohst said.
She said when hiring a new employee, if the prospective candidate says they are taking a medication due to cancer, glaucoma, migraine headaches, etc., then the employer is on notice that you have someone with a disability, and you have an ADA issue. She said once you hire, there is a higher risk of a discrimination claim.
(Left) Karina L. Schrengohst, Esq. who spoke on the impact of prescription drug use in the workplace at a Chamber of Commerce workshop on Monday, and Kate Phelon, executive director of the Chamber. (Photo by Amy Porter)
She added that some employees will volunteer the information, but you don’t want to ask about it.
She said creating and maintaining a drug-free workplace policy is important. Just as important is training managers and the people who are responsible for enforcing the policy to make sure they understand it, and the need for confidentiality.
Schreingohst also recommended drug tresting. She said there is no drug testing statute in Massachusetts, but there is privacy law that protects against unreasonable, substantial or serious interference with privacy.
She said drug testing rules might depend on the essential functions of the job.
Schreingohst, who represents employers in ADA suits, said in one case of an employee who drove a company vehicle, the employer was found by the court to have a legitimate interest in not having someone driving under the influence.
She said in another case in the same company of an employee who drafted and edited materials, the court found the employee’s privacy interest was higher.
In response to a question about what happens if marijuana becomes legal in Massachusetts, she said that it will still be illegal under federal law, and the illegal use of drugs is not protected under the ADA.
Another question was asked whether employees could be fired because their performance was impeded by drugs, even if they are prescribed.
“That’s why documentation is so important,” Schreingohst said. She recommended documenting tardiness, for example, and creating a paper trail.
“It’s very persuasive (in court) when you have documentation created at the time,” she added.
She said drug-testing when pre-hiring is very common for employers who work with patients, in a factory, etc. Employers also drug-test employees when there is reasonable suspicion of drug use on the job based on observation of behavior, appearance, body odor, or speech.
She said ideally you will have a form to train supervisors on these observations, and have two people involved.
Schreingohst said if someone discloses he or she is using because they have cancer, for example, it’s important to understand employer obligations under the ADA and the Family Medical Leave Act. She said some employers offer treatment, and others terminate when the job is impacted. If an employee goes to treatment and returns not using, the employee is then protected under the ADA.
She said the most important tools for managers regarding prescription drug use in the workplace are supervisor training, a comprehensive job description, documenting performance and conduct, and consistency in discipline. She also recommended contacting employment counsel.
“I thought it was very interesting. More businesses should be here,” said John Holme, owner and operator of Alternative Health in Southwick, following the workshop. He said the information can help employers to develop policies for their businesses, and keep the proper employees.
“I thought this was very informative. It will be interesting to see what happens in the future,” said Reiki master Harlene Simmons. She said her practice in Westfield helps people to find different ways to deal with pain other than using prescription drugs.
“Anything on employment law is important for the business community. Employment law affects sole proprietors and small businesses, and it’s a challenge to keep up with the constant changes,” said Kate Phelon, executive director of the Chamber.
The Chamber is hosting two more workshops on this topic in upcoming months. On May 9, Schrengohst will speak about recordkeeping and documentation, and in June on the topic of the wage and hour law and a change that is coming in the exempt status. Contact the Greater Westfield Chamber of Commerce for more information online at www.westfieldbiz.org.
