Don’t Give Up If Your Candidate Fails a Drug Test

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Dear Jeff:

Lately it seems I am getting every strange circumstance in healthcare recruiting. I really could use your help! I welcome your advice because you are our go to expert in our office.

Here goes:

An offer has been extended to one of my RN supervisors in the state of Florida, contingent on a standard drug and background test. This is routine for the testing of illicit drugs and a standard background test. Candidate and I proceed to coordinate orientation with HR, etc.

Candidate was told by HR that her urine test came back positive for drugs, candidate is told it is for a controlled substance. Candidate tells HR that she has been prescribed the medication by a physician and will have a letter faxed to HR and drug testing center by her doctor for immediate resolution.

Days go by and it appears that HR has elected to rescind the offer based on this urine test, despite the fact that a letter was sent from candidate’s doctor who prescribed the medicine. Ativan or the generic equivalent lorazepam was the controlled substance we are speaking of. It’s a treatment typical for anxiety and frequently prescribed for fear of flying amongst other things.

HR proceeds to tell me that they have not received any such letter from candidate’s medical doctor and if they had, it does not matter since candidate neglected to denote this medication when asked on disclosure form. Candidate has no recollection of question on form since urine test was taken several days following offer and at a lab off campus. Candidate did not mention this medication because it never dawned on her. Typically they are testing for marijuana or cocaine or illegal street drugs.

My question to you is, when did employer’s start testing healthcare professionals for doctor prescribed medications? Isn’t this a slippery slope? Can they legally rescind the offer based on a medication that you have been prescribed by a medical doctor?

This whole thing smells funny to me. Is this legal in the state of Florida? Is there any recourse for this candidate? Not all people who take a controlled substance should be viewed negatively, and while some people do abuse prescription medication, everyone is not guilty of abuse. In my 12 years of recruiting in healthcare I have never come across something like this. Is there anything we can do?

Regards,

Ryan Underwood
Recruiter Quest Consultants

This Could Be an ADA Case

Hi Ryan,

Great to hear from you with this JOC placement law bar exam!

The scenario you sent raises three critical questions about candidate drug testing. Recruiters rarely ask them. Instead, they just accept the client’s rejection of the otherwise-placed candidate. Then they stop working that candidate.

What a shame!

So let’s hit those questions and get some answers:

1. Can the employer reject a candidate for using certain drugs?

Your nursing supervisor candidate tested positive for Ativan (the brand name for lorazepam).

If you go to www.drugs.com or any similar website, you’ll see that the side effects of lorazepam include confusion, impaired cognition, memory loss, drowsiness, clumsiness, dizziness, unsteadiness and weakness. H-m-m-m.

Nursing supervisors work in a high-risk health care environment where split-second decisions can mean the difference between life and death for patients. This is particularly true in convalescent homes, nursing homes and hospitals where 24-hour vigilance is essential.

Factors to consider here are: the duties required, the types of nurses being supervised, the types of patients being served, the dosage and frequency of the lorazepam, the duration of time the candidate has been taking it, her mental and physical reactions to it, and her history of job performance taking it.

Let’s assume your candidate has been functioning as well or better in a similar job while taking the lorazepam.

If there’s no job-related reason to reject her, the next question is:

2. Can the employer test for legally-prescribed drugs?

Article Continues Below

You may have read my bestseller, Complying with the ADA. It’s out of print now, so can only be obtained on the Internet, in used bookstores, or in libraries. In it, I discuss drug testing issues in detail.

The EEOC’s Technical Assistance Manual on the employment provisions of the Americans with Disabilities Act states:

Drug tests must be conducted to detect illegal use of drugs. If a person is excluded from a job because the employer erroneously ‘regarded’ him/her to be an addict currently using drugs illegally when a drug test revealed the presence of a lawfully-prescribed drug, the employer would be liable under the ADA.

How’s that for a five-figure fee quote?

The assistance manual defines “illegal use of drugs” as possession of drugs regulated by the Controlled Substance Act (21 USC 801, et seq.). As you mentioned, this includes lorazepam.

It goes on to state:

To avoid liability, the employer would have to determine whether the individual is using a legally-prescribed drug.

While the assistance manual is not a law, it is a guide that employers ignore at their peril.

Your candidate is using lorazepam with a legal prescription, so a prima facie (“on its face”) claim under the ADA exists. That means an EEOC Charge of Discrimination can be filed by your candidate. Regardless of the outcome, this is likely to cause many additional legal prescriptions for lorazepam to be filled by human resourcers and other staffers at the employer.

With that medical alert, it’s on to the last question:

3. Can the candidate be rejected for failing to disclose the use of drugs?

It’s hard to imagine that drug disclosure form your candidate (must have) signed didn’t have words like:

Any omission, false statement, or misleading representation as to the dosage and frequency of the drugs you are taking is grounds for rescission of your offer of employment from (name of employer).

Since your candidate doesn’t remember completing the drug disclosure form, a written request should be made for the completed form from both the drug testing center and the employer. If the request is not granted immediately, the local Florida Agency for Workforce Innovation office should be contacted.

Then, you can figure out how an RN supervisor overlooked disclosing lorazepam prior to a urine test. (Note that amnesia is another side effect of lorazepam.)

We really covered a lot of law here. Now it’s your turn to get down to business with that client. Any career nursing supervisor should be highly motivated to get thiscontrolled substance issue resolved immediately.

Best wishes in making this and many more placements!

Jeff

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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