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POSTED ON OCTOBER 17, 2012:

Workstation Medication

Prescription drug use at work leads to conflict

By Jaime Adame

The physician-prescribed pain medication didn't keep Timothy King from doing his job.

But his employer did, once they found out in September of last year that King used drugs to manage painful sores.

King filed a lawsuit this year, arguing that his employer, oilfield services company Baker Hughes, unfairly made rules keeping him off the job.

"He was the one who volunteered that information, to give them a heads up," explained King's attorney, Spencer Bryan. What's noteworthy is that King had been using physician-prescribed pain medication since 2003, according to court documents, all the while performing his job duties with "no safety-related violations or complaints," the lawsuit states.

Prescription drug use can become a source of conflict between employers and workers. King still works for Baker Hughes, but others have been fired over their use of a prescription.

Two former Tulsa World employees, for example, have sued the company after they lost their jobs in disputes related to their use of prescription drugs.

Employment law attorneys representing workers and those working for companies agree on one thing: "I think employees, if they're in a drug testing situation, need to inform themselves first of all about the company policy," said Mark Hammons, the attorney representing the workers in their separate cases against World Publishing Co., parent company of the Tulsa World.

Companies "have broad authority to conduct testing," but must not single out employees unfairly, said Hammons, president of the Oklahoma Employment Lawyers Association.

Keeping silent about prescription drug use may not be the best approach.



Depending on the type of job, employers may require workers to inform their boss if, for example, they're taking prescription opiates, noted Mike Seney, senior vice president with the State Chamber of Oklahoma.

Such policies stem from a concern about workplace safety, Seney said. He added that an incident like a car accident involving a worker on strong prescription drugs could lead to problems for an employer.

"The liability exposure is tremendous," Seney said.

The business organization successfully pushed for changes in the state law that allow for more employee drug testing.

Bill Wells, an employment law attorney, explained that the old law said that employers could drug test someone only under narrow circumstances. For example, an employer or another worker observing "bizarre behavior or unusual behavior" was grounds for a drug test. The wording of the law made employers uncomfortable with having to make such an assessment, Wells said.

Now, the law allows an employer to test a worker who racks up absences or generally has a "pattern of negative job performance behavior," Wells said.

If a worker is coming back off a long leave of absence or is being transferred, an employer can also now legally test for drugs.

But Wells said companies who drug test must have a policy and disseminate it to all workers -- so any worker has the right to view the policy at any time.

Do workers bother to read such policies?

Seney said he had little sympathy for workers who don't know the rules of their workplace.

Hammons said employers can sometimes ask for drug tests for the wrong reasons, however.

"There's a potential to misuse drug tests to weed out people that have got medical problems," Hammons said.

One of his cases involving the Tulsa World outlines how an employee Terry D. Owens, worked from 1975 until his termination in September 2010.

"Although Plaintiff suffered from and continues to suffer from serious medical conditions since 1999, the Plaintiff was able to fully perform his job duties by the use of doctor prescribed pain medications," court documents state, noting that in the time period after 1999 Owens earned two promotions. At the time of his firing, he held the job title "assistant foreman/lead mailer," his lawsuit claims, though the World disputes this job title.

But then the World's drug policy changed in early 2010, court documents state. Later that year, Owens was asked to undergo "a fitness for duty evaluation," and the World required Owens to "change his medications to a medication which would not effectively manage [Owens'] pain," the document states. The lawsuit describes how Owens had years earlier tried the medication but found it ineffective, with doctors having him switch away from the drug the World now wanted him to use.

"When [Owens] would not change to this less effective and impairing medication, he was terminated," the lawsuit states.

The other case involves Brandi Ball, a reporter who worked at the World from 2007 until 2011 when she was fired after testing positive for medication when "the amount was, by the definitions provided under the employer's policy, insufficient to constitute a positive result," her lawsuit claims. The lawsuit also states Ball "was denied a copy of the test" and that the World lacked a proper reason to test her in the first place. Ball was tested upon returning to work after being hospitalized following a surgery.

In its response, the World states that Ball "did not have a valid prescription."

The World referred comment to attorney Schaad Titus, who wrote in an email that the newspaper "believes that it acted in compliance with state and federal laws and acted properly in all respects in performing drug tests and reviewing the results of the drug tests under the quite different circumstances of these two cases." Both cases remain pending in U.S. District Court in Tulsa.

In the case against Baker Hughes, the company ordered King, a lead operator in the resin unit of the company's manufacturing division, to not show up to work until 72 hours have passed since using prescription pain medication.

The order apparently came from the company's director of manufacturing, Keith Terhune, who told King the worker was a safety liability, according to court documents.

But the company is wrong to force King to use sick days without a proper evaluation, said King's attorney.

"We simply want Baker Hughes to come in and perform an individual assessment of our client," Bryan said. In general, "I just think in the normal course of business, there's not a lot of employer-employee communication about what medications people are taking."

Baker Hughes declined to comment on the unresolved case.

Send all comments and feedback regarding City to jadame@urbantulsa.com

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