One of my friends is interviewing for a job at an insurance company, evidently just your typical 40-hours-a-week paper-pushing desk job. She asked my opinion about their pre-employment drug testing form that she has to sign, though, with some concern because she takes prescription Adderall for ADD, and that will come back as a positive result for amphetamines.
She does have a valid prescription, and as far as I can tell she should be fine, but I’m not an experienced HR person or a lawyer by any means, so hopefully the vast knowledge and experience of my fellow SDMBers can help. Here’s the language (the full document is available to the public on the company’s web site, but I’d rather keep this as anonymous as possible, so I’ll just paste the releveant portions here):
So from that it sounds like as long as she has a “legitimate explanation” in the form of a prescription, the company doing the drug testing will just send her potential employer a “pass” result, right?
And just to see if I understand the language even though it doesn’t apply to this particular pre-employment case, does the whole “if it’s a prescription drug” clause mean that if an employee tests positive for a street drug like heroin or methamphetamine, he or she would be fired immediately, but if it was illegitimate use of a prescription drug, the Regional Manager could have him or her fired or simply require rehab or something?
So that all sounds fine to me, but then there’s this small part on the last page:
(Bolding mine)
This is the part makes me wonder if I’m interpreting the previous part correctly, since it actually specifies “unprescribed or controlled substances.” Since Adderall (and most every other prescription drug that can show up on a drug screen) is a controlled substance, presumably they mean “if we receive a positive result for a drug that hasn’t been legitimately prescribed to you,” and it wouldn’t apply for legitimately prescribed drugs at all because they wouldn’t even receive a positive result … right?
Here’s the way I understand it, and I’m sure there are subtletys I’m wrong about:
State of the art technology passes your sample through a gas chromatograph mass spectrometer (GCMS). Those things are pretty darn accurate, and have pretty low (6-sigma?) instances of false positives or false negatives. Also, even though the result they give you back might be opiate, they know if it’s heroin, morphine, Oxycontin, or Percocet. So, IIRC, Adderall will test differently than meth, will test differently than crank.
Now, policy is a different story. If I have a prescription for, say, Ambien (I do, recent knee surgery) and I get called into the “Golden Retriever”, an RV that is customized to go to different facilities and collect urine samples, there won’t be a problem. I’ll just tell the tech that I have such and such script, and they’ll jot it down in their notes. However, let’s say that one of my buddies made hash brownies last weekend. If I tell the tech, it doesn’t really matter. However, if on that Monday morning I had come to my line manager and said, “Hey, line manager, I think they slipped me some hash brownies this weekend,” then it would be on record and wouldn’t be a problem if I were to be called in for a “random” test.
I would suggest that she bring her valid prescription to the testing facility and have them note them at the time of the sample. She should also discuss her reasonable fears, hopefully based on some research (google is her friend), about how this drug may show up in the testing, and maybe get some information about what method(s) they use to detect the presence of drugs.
Either that or she could do what a former co-worker of mine did. Knowing he had a drug test on Monday in order to renew his Class B Driver’s License, he still went out over the weekend deer hunting with his brother-in-law…and smoked a joint. :smack:
Well, I thought my friend was okay, and I told her that she should be fine, but a google search turned up this thread on a message board called “Free Advice,” where the OP says:
This makes me wonder if the same sort of thing might happen. Is it legal to discriminate against somebody taking a prescription medication like that? It seems like it would be a violation of the ADA, from what I’ve read at ada.gov, but I may have misunderstood.
I went to the Free Advice forums (I am a long time member) and read the whole thread that you quoted. The person was denied the job because he did not disclose to his possible employer that he was prescribed Adderall when he was given the conditional job offer, he only told the outside vendor that did the drug test. The employer did not know about the prescription medication till the results of the drug test came back positive. That was the basis for denying the job, not the fact the person was on a prescription drug. Your friend needs to let the potential employer know about the prescription before the drug test, not after.
In my experience, the employer (HR) couldn’t care less about your medical history and prescription history, and any “positive” test result is discussed with the outsourced clinic and resolved there prior to releasing the results to the employer. I would never, ever share the fact that I was on something like Adderall (I’m not) with a potential employer. It’s absolutely none of their business. HR employees do not have the knowledge necessary to decide whether a prescription is valid, and so don’t need to know about it.
I am bothered by that story - it seems so unreasonable! I hope those people get a good lawyer!
A bit of a slippery slope. The Employer has grounds to deny the job and offer it to someone else based on the positive test result. BUT, I don’t know (IANAL) if they have any legal standing to claim that they should have been told what drugs the person had been prescribed before the test.
Sounds like an interesting lawsuit in the making. I’d bet money that the outcome would be that the testing facility, being notified of the prescription, should have noted that on the outcome as a potential explanation, and is therefore “at fault” or liable. After all, they’re the ones making the determination here. The employer is only operating under reasonable assumptions based on what they’re being told by the testing agency.
OTOH, I don’t know the whole thing here. If it said “Positive” but then explained that the presence of the prescription drug may cause a false positive, then there might be a case against the employer. I would think that medical privacy laws and employment laws both protect people against having to reveal their medical prescriptions to their employers.
But again, IANAL. Just a person with a strong sense of Justice and a certain amount of Reason.
As a US HR person, but not one who has worked closely with drug testing, my understanding matches yours, with one exception. Generally all of the discussion of testing, prescirptions, and conditions takes place with the third-party company.
However, sometimes safety-sensitive jobs have a requirement to disclose prescription drug use to the employer. Usually that type of employer will have a medical/safety officer, who may be part of the HR team. That might have something to do with the situation on Free Advice, which I haven’t read in detail. My gut reaction to the Free Advice situation is that this sounds like a small organization/small town where some incompetence happened. They may in fact have violated the applicant’s medical privacy or the ADA w/r/t pre-employment inquiries.
To the OP’s situation, even as someone with experience in HR, I can’t be sure exactly what that legalese means. I would have to take it to legal to ask them to sort it out.
The way things are supposed to work is that employee can take a drug test, disclose prescriptions to the third party (or sometimes an internal medical/safety office), and those involved in hiring/management don’t learn the employee’s condition. Most employers want it to work that way, because learning of an employee’s medical condition is a liability to them.
IF drug usage - either legal or illegal - has he potential to affect job performance then employers do have some grounds for knowing about what an employee is taking and for what. Pilots and truck drivers, for example, are not permitted to take many legal, prescribed drugs while working in the their professions based on safety concerns. So… a trucker requiring vicodin for post-surgical pain is just going to have to stay off the job until he/she doesn’t need that medication any more and it works itself out of his/her system.
When you get to things like Adderall for ADD things get a little fuzzier. If the job requires keen and prolonged attention to detail you have to wonder if someone with ADD is going to be able to do the task at hand. Is that fair? I don’t know. I have no doubt there are people unfairly fired over drug tests for legitimate prescriptions.
There are also concerns about people who are in drug rehab. For instance, someone who is in the process of kicking heroin may be taking methadone as a prescribed drug… but does the employer want to take a chance on someone with an addiction? Back when I worked at a clinic treating people with addictions it wasn’t unusual for an employer who hired one of our clients/patients to make it clear that just one test positive for street drugs or anything not doctor-prescribed and the person in question would be fired.
The language posted in the OP seems to be trying to cover all of the above scenarios.
From what I’ve read about the ADA and drug testing (which I have admittedly only been doing for one day now), I don’t think that’s the way it’s supposed to work. I think the employer has no right to know what prescriptions you’re taking or your medical history is; if a drug test comes up positive at the lab, the drug testing company is supposed to contact the potential employee and ask if there is a legitimate reason for the positive result (i.e., a prescription medication) and, if so, report that the person passed the drug test.
Supposedly, employers are allowed to make you take a physical and/or a drug test after they’ve offered you a job on condition of passing, and then not hire you if you fail – so they are allowed to not hire somebody who is physically incapable of doing the job, or who is taking a prescription that would be dangerous for somebody doing that job to take (i.e., if you’re applying for a job as a pilot, there are evidently lots of prescription drugs you aren’t allowed to be on), or who is smoking marijuana or whatever. But legally prescribed drugs are not supposed to cause a “fail” result on a test for illegal drug use.
But it doesn’t seem like it really works like this everywhere.
Thanks for the perspective of an HR person. It sounds like that’s what happens in my friend’s situation; the mention of a “Medical Review Officer” makes me suspect they have the kind of situation you describe.
I would say wrong. The "“legitimate explanation” applies to an unconfirmed positive, which I would interpret as unclear results (e.g. a fuzzy positive for opium from having eating a poppyseed roll, which would be a legitimate explanation).
It’s a little less clear here. I would suspect their intent would be more accurately conveyed by prescribed drug. Common sense tells me that presence of either a street drug or a prescription-type drug for which the applicant does not have a prescription is grounds for immediate dismissal. A confirmed positive for drug for which the applicant does have a prescription sends it to the manager.
Wrong. A positive result refers simply to the lab test, which (presumably) is going to be postive. Again, the wording could be clearer. I’m sure they don’t mean someone will automatically get booted for testing positive for a legitimately prescribed controlled substance - that would conflict with the previous statement that says it goes to the manager. The “or controlled” phrase was not well thought out.
Well, I’m not a doctor, nor do I do drug screening… but I am a business analyst for a healthcare company that does a fair amount of pre-employment drug screening.
The way I’d have read that paragraph is:
If you have a unconfirmed positive test, the MRO will discuss it with you. He may find out that you had poppy seeds or something. If you don’t give a legitimate answer, then they’ll assume that you were doing something illegal.
If you have a confirmed positive test, i.e. you did indeed test positive without a doubt, then if it’s a non-prescription drug (crack, opium, crank, etc…) then you’re fucked. If it was a prescription drug, then they may take less extreme measures than if it was non-prescription.
Generally speaking, the system’s set up to avoid giving very many false positives at all- this kind of thing can really screw someone’s life up, and the system’s engineered to try to prevent that unless there’s good cause.
I think your friend would come out ok- she’d have an unconfirmed positive, talk to the MRO, who’d note Adderal, and pass her, then everything would be peachy.
That seems unlikely, or everybody who tested positive for morphine could just say they got it from eating poppy seeds. How could you prove that one way or another? I would think “legitimate explanation” can only mean “legitimate prescription.”
That sounds like exactly the wrong thing to do – the manager isn’t supposed to know if you’re taking prescriptions unless you have a job where they might affect public safety or whatever. Only the drug testing company or the medical officer should know about it, and they have to keep it confidential. As Harriet the Spry said, those involved in hiring and ordinary management aren’t supposed to know about the applicant or employee’s medical history – only if the applicant or employee is currently using illegal drugs.
Just for clarification: when you said “give a legitimate answer” in your paragraph 1, would “having a valid prescription” count? Because in that case it doesn’t seem like they should be able to take any measures at all against you, to me. On the other hand, if you took a couple of your friend’s Vicodin because you had a backache or something, and then got hit with a random drug test the next day, it makes sense that your bosses could either say “You’re fired,” or “As long as you test clean on five random tests over the next three months, I’ll believe it was a one-time thing and you can keep your job,” or whatever else they decide.
It sounds like that’s what you were saying, from your last part about how she should be fine, but I want to make sure I read that right, since Gary T indicated that I understood wrong … but from what I’ve read, it seems like the company management and people involved in the hiring should not know about your medical history for an ordinary desk job and not a job like a truck driver or pilot – only the drug testing people or the company medical officer should know about it, and they’re supposed to keep it confidential.
If he was the most qualified applicant for the job, then there is very little ground for this action by the employer as far as I know. ADD is definitely covered by the ADA. IANAL, but I know that last statement is true for sure.
When I worked in H/R as a clerk our form indicated something along the lines of
…we MAY be testing for the following drungs…
Then it listed like 50 drugs. In reality we didn’t test for that many. The H/R director told me that while Marijuna was on the list, they didn’t test for it. It costs more money to test for more drugs, so often the employer will ist all the potential drugs but not test for them all.
This way if someone is doing drugs it might discourage them. I had my doubts as I was shocked by the huge number of people that failed drug tests. We tested for meth and cocaine and people were failing left and right for that. I don’t know why they bothered taking the test.
Just as a side note, methamphetamine is a Schedule II prescription medication in the united states (very rarely) sold under the brand desoxyn.
Cocaine, IIRC, can be administered in a surgical setting if required, although it’s unlikely that you’d be taking a drug test soon enough after ENT surgery.
Heroin is a Schedule I in the US, but is a prescription medication in the UK, but can be hard to differentiate from other opiates on drug tests (depending on the test).
I’m on Adderall, and I was going to be drug tested for a new job.
At the testing facility, I told them that I was on it. They told me that they don’t convey that information to whoever does the actual tests, but that when the test came up positive, I would be contacted by a doctor. I then should tell the doctor that I am on it and give him contact information for the prescribing physcian and pharmacy. Then he would check things out and the employer would receive a “clean” report. And they also said that I shouldn’t worry, and this kind of thing comes up all the time.
A day or two later, I received a call from the doctor. I told him it was my Adderall prescription and gave him the relevant information. And a day or two after that, I was offered the job. No problem.